Justice Kennedy and the Future of Same-Sex Marriage

If and when the California same-sex marriage case (or a similar case) reaches the U.S. Supreme Court, the results may well depend on Justice Anthony Kennedy, a Californian appointed to the Court in the 1980s by Republican president (and former California governor) Ronald Reagan.  With four likely votes for and four likely votes against same-sex marriage, the Supreme Court decision may well depend on Kennedy’s tiebreaking vote.  If so, it will be a useful reminder that some of the divisions that threaten the unity of the Republican Party today—between moderates and conservatives, but also between social, economic, foreign policy, and libertarian conservatives—run right through the Republican majority on the Supreme Court.  In fact, these divisions have been evident in the Republican majorities on the Court for more than forty years.

Predicting Justice Kennedy’s vote with any degree of certainty is a risky game.  Much will undoubtedly depend on the facts of the case and the litigation strategies used by the opposing sides, as well as the many other political, legal, social, and cultural factors that influence Supreme Court decisions.  Kennedy’s majority opinions in Romer (1996) and Lawrence (2003), while supportive of gay rights, can be read to suggest both positive and negative outcomes for proponents of same-sex marriage.  But there may be useful clues in a case decided by the Court in 1989, just after Justice Kennedy was appointed.

In Michael H., the Court ruled against a man seeking to establish paternity and gain the right to visit his biological daughter, whom he had fathered in an adulterous relationship with a married woman.  According to the plurality opinion by Justice Antonin Scalia (and endorsed for the most part by three other justices), California law presumed that a child born to a married woman who lived with her husband was the husband’s child.  Noting that the only liberties protected by the Constitution were those that were “fundamental” and “traditionally protected by our society,” Scalia emphasized “the historic respect—indeed, sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.”  A footnote explained that the “unitary family” was “typified, of course, by the marital family, but also includes the household of unmarried parents and their children.”

Scalia’s use of the concept of the “unitary family” and his inclusion of families made up of unmarried parents and their children is noteworthy.  The origins of the term “unitary family” are not entirely clear and Scalia did not reference any legal cases or scholarly works that discuss the concept. Historical scholarship on the social acceptance and legal rights of unmarried parents and cohabiting couples certainly might cast doubt on Scalia’s claims about the traditional protections extended by society to the members of such families.  At the very least, this seems a marked departure from the mode of legal reasoning commonly associated with Scalia, which as we will see defines “fundamental rights” in the narrowest possible terms.  It’s also seemingly at odds with the substantive decision in Michael H., which emphasized marital rights.  Nevertheless, four justices (including Kennedy) endorsed these conclusions, while a fifth, John Paul Stevens, concurred with the judgment because, in his view, the appellant had been given a fair opportunity to argue in court for his parental rights.

Michael H. continued a discussion that began in the 1986 Bowers v. Hardwick sodomy case about how the Court should identify which liberty or privacy interests were protected by the Constitution.  In Bowers, the conservative majority had asked whether the Constitution conferred on homosexuals the fundamental right to engage in sodomy (and answered no).  The dissenters had asked whether the Constitution recognized, as part of the long-recognized “right to be let alone,” the right of consenting adults to make decisions about engaging in private sexual activity (and answered yes).

In Michael H., all of the justices seemed to agree that it was important to consider which interests were historically protected and recognized as fundamental in the United States, but they disagreed on whether those interests should be defined in specific, narrow, and concrete terms or in general, broad, and abstract ones.  Discussing Bowers and Michael H., Scalia claimed in a footnote that “we refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”  For Scalia, just as the Court had asked in Bowers whether “homosexual sodomy” was traditionally protected, in Michael H. the Court asked whether “the rights of an adulterous natural father” were traditionally protected.  Such rights were not traditionally protected, according to Scalia, and this was the basis for his decision.  Significantly, only Justice William Rehnquist endorsed Scalia’s footnote.  Justices Sandra Day O’Connor and Anthony Kennedy agreed with all aspects of Scalia’s opinion except this footnote, and they felt strongly enough about the footnote that they went to the trouble of distancing themselves from it and explaining their reasons for doing so.

Citing Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Loving v. Virginia (1967), O’Connor and Kennedy’s concurring opinion argued that “on occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be ‘the most specific level’ available.”  Griswold and Eisenstadt were important birth control precedents and O’Connor and Kennedy presumably were concerned that Scalia’s rule could have led to different outcomes in these two cases, but there are reasons to believe that they were even more concerned about Loving, the decision that overturned state bans on interracial marriage.  They were apparently concerned that Scalia’s reasoning could have led to a different result in Loving.  In that case, Scalia’s rule might have led the Court to ask whether the specific right to marry across racial lines, as opposed to the general right to marry, was traditionally protected in U.S. society.  The answer might well have left interracial marriage bans in place.

In Michael H., Justice William Brennan wrote a dissenting opinion that was endorsed by Justices Thurgood Marshall and Harry Blackmun.  (Justice Byron White wrote a separate dissent.)  Brennan criticized Scalia for identifying traditional rights in such narrow terms.  Just as Blackmun’s Bowers dissent had emphasized that the case concerned not the narrow issue of homosexual sodomy but the general issue of sexual privacy, Brennan argued that the core issue in Michael H. was not adulterous parenthood but parenthood more generally.  Brennan also echoed the concerns expressed by O’Connor and Kennedy about what Scalia’s reasoning would have meant for Griswold, Loving, and Eisenstadt.

In the same-sex marriage cases heading to the Supreme Court, both sides typically emphasize fundamental rights arguments.  Supporters and opponents of same-sex marriage both invoke what they see as the fundamental right to marry, though they disagree about whether the right to marry should be conceptualized in historically specific, narrow, and concrete terms or in more general, broad, and abstract terms.  For opponents of same-sex marriage, the right to marry is specifically, narrowly, and concretely heterosexual.  For supporters, the right to marry is more general, broad, and abstract and it is capacious enough to permit or require the legalization of same-sex marriage.  If Michael H. provides us with any clues about what Justice Kennedy will do when and if the Court considers California’s Proposition 8 or the U.S. federal government’s Defense of Marriage Act, supporters of same-sex marriage may have reasons to be hopeful.