The Supreme Court should issue its ruling in the same-sex marriage cases this week, and as I explained in my previous post, eight of the nine Supreme Court Justices will likely split 4-4 along ideological lines in Perry and Windsor. That leaves the monumental decision of whether the Constitution guarantees a right to marry, regardless of sexual orientation, in the hands of one man: Anthony Kennedy.
Both sides have reasons to be optimistic about Justice Kennedy’s vote. Kennedy was appointed to the Supreme Court by Ronald Reagan in 1988, and for the first decade and a half of his time on the Court, he was considered one of the four conservative justices. He is now considered the swing vote, but he didn’t change; the Court did. The swing justice during Kennedy’s early years, Sandra Day-O’Connor, was replaced by the more conservative Justice Alito. So, conservatives can reasonably expect to have Justice Kennedy on their side much of the time—including, for example, in the Obamacare case last year.
But the best predictor of how a justice will vote in any given case is how that justice has voted in similar cases. Fortunately, we know quite a bit about what Justice Kennedy thinks about LGBTQ rights. The cases we have seen Justice Kennedy decide give liberals plenty of reason for optimism. The Supreme Court has decided two major same-sex rights cases in the past two decades, and Justice Kennedy has written the Opinion of the Court in both of them.
The first was Romer v. Evans in 1996. The state of Colorado passed a law that barred certain types of discrimination, but specifically excluded LGBTQ individuals from the law and barred cities and counties from passing laws protecting LGBTQ individuals from discrimination. Justice Kennedy, along with the four more liberal justices, held the Colorado statute unconstitutional. Kennedy explained that there was no rational basis for the law other than animus toward a politically unpopular group. Kennedy said that the state of Colorado did not necessarily have to protect LGBTQ individuals from discrimination, but once a law was passed creating such a protection, Colorado could not remove that protection arbitrarily. The 9th Circuit followed a very similar form of reasoning in its decision in the Proposition 8 case currently before the Court.
Justice Kennedy also wrote the Court’s 2003 decision in Lawrence v. Texas. In that case, the state of Texas had a law making it illegal to engage in homosexual sex. The Supreme Court held that the law was an unconstitutional intrusion on the liberty interest protected by the Due Process Clause of the Constitution. Kennedy’s opinion avoided classifying discrimination based on sexual orientation as a type of discrimination deserving a particularly high level of protection under the Constitution (as is the case with racial or gender-based discrimination). But the opinion indicated that mere animus toward a politically unpopular group is not a valid reason for a state to pass a law.
Now, Justice Kennedy has to decide the fate of DOMA and Proposition 8. His decision in the DOMA case will likely be his easier one because he is a big believer in states’ rights. Kennedy often looks at constitutional issues from a paradigm that focuses on whether the federal government is improperly stepping into an area of law that should be the province of the states. This, for example, explains why he voted with the conservatives in the Obamacare decision last year.
But in the DOMA case, the states’ rights interest actually works in favor of the liberals. The governmental job of determining marriage-related rules is traditionally the role of the states. DOMA infringes on that state interest by dictating that (at least for the purposes of distribution of federal benefits) only marriages between opposite-sex couples will be recognized. During oral arguments, Justice Kennedy, consistently with his strong belief in states’ rights, repeatedly brought the conversation back to that topic. So, there is a good change he will hold that DOMA is unconstitutional because if the federal government wants to tie certain benefits to marital status, it must accept the determinations of the states about who is legally married. In other words, my guess is that Justice Kennedy is inclined to hold DOMA unconstitutional without reaching the issue of whether there is a constitutionally protected right to same-sex marriage.
The more difficult prediction to make is how Justice Kennedy will vote in the Proposition 8 case. The best way of looking at his decision might be by process of elimination. It seems unlikely that he would expressly hold that the Constitution does not protect a right to same-sex marriage. The logic he would have to use in writing such an opinion would have to be very inconsistent with his own opinions in Lawrence and Romer.
On the other hand, Justice Kennedy could hold that the Constitution guarantees a right to same-sex marriage in all 50 states. But it seems to me that Kennedy is extremely hesitant to do that. My best evidence for that belief came from the oral arguments. Justice Kennedy said, “I think that there’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more.” That quote, of course, is not very good evidence of how Justice Kennedy will vote, but it is the best I’ve seen.
Of course, Justice Kennedy has more than just those two options in the Proposition 8 case. The two possibilities above are the two ends of that spectrum. My guess is that he will decide to do something in the middle. He could avoid deciding the case completely, by holding that the Court doesn’t have jurisdiction. I am not that inclined to think that Kennedy will take this option either. The Court has two very big, very public same-sex marriage cases in front of them right now, at a time when the public is very interested in the issue. The Court often likes to avoid issuing big decisions, but this case seems too big to completely punt on. Plus, the Court has been avoiding the issue of same-sex marriage for quite a long time already. I think Kennedy wants to say something about same-sex marriage, even if he doesn’t want to go all the way in one direction or the other.
That brings us to what the Ninth Circuit did, which was to basically mimic what Kennedy did in Romer. That would result in same-sex marriage becoming legal in California, but not in any other state. It would also leave the question of whether the Constitution protects a fundamental right to same-sex marriage for another day. The Court, in a future case, would be able to find such a right without having to overrule the Proposition 8 case. This result would also allow the political process to continue working, with the people of each state determining whether they want same-sex marriage in their own state. That interest, although it doesn’t appeal to everyone, probably appeals to Kennedy.
Of course, nobody knows what the Supreme Court will do in the same-sex marriage cases, but the most likely result is a pretty good one (albeit perhaps not a perfect one) for LGBTQ rights supporters.
 Can anyone believe that only ten years ago it was still illegal for two consenting gay men to have sex in the privacy of their own home in Texas? Just me? I know it was Texas, but still, this was 2003!
 Kennedy actually qualified that statement by his next sentence.
 Or by deciding that certiorari was improperly granted (but don’t bet your house on this possibility).