In the months leading up to the Supreme Court's decision last week to hear two same-sex marriage cases, much of the speculation has been on how Justice Anthony Kennedy will vote. The centrist Kennedy is widely viewed as holding the coveted fifth vote that will break the tie between the Court's conservative and liberal wings. Yet, little notice has been paid to how the same-sex marriage cases offer Justice Kennedy the opportunity to decide how history will remember him.
Although justices can be the subject of much attention while deciding the important cases that reach the Court year-to-year, most are relegated to historical obscurity once they retire. In fact, of the 112 justices who have served on the Court since the founding of the republic, only a handful are remembered today. One of those is Justice John Marshall Harlan, who in 1896 was the sole dissenter from the Court's shameful ruling in Plessy v. Ferguson upholding the constitutionality of laws that treated blacks separately but (supposedly) equally. Another is Chief Justice Earl Warren, who six decades later led a unanimous Court in striking down school segregation in Brown v. Board of Education.
Justice Kennedy already has established a partial legacy for himself in gay rights lawsuits. In 1996, he cast the deciding vote invalidating a Colorado constitutional amendment singling out gay people by denying them (and no others) the protections afforded by anti-discrimination laws. Seven years later, he wrote the majority opinion striking down a Texas statute criminalizing consensual gay sex between adults.
As important as these decisions were, they pale in comparison to the Proposition 8 and the Defense of Marriage cases now before the Supreme Court. Part of what makes the same-sex marriage cases so important is the large number of rights and benefits that the government makes available to married couples. But the struggle for same-sex marriage has always been about more than, say, Social Security benefits and the right to inherit property. It is also about the place of lesbians and gay men in our society. And, even more fundamentally, it is about our values as a nation.
The same-sex marriage cases are like a mirror through which we see our reflection as a people. There are some who choose to see in that mirror a society governed by traditional understandings of marriage and family, ones that thought to serve as essential foundations for stability and continuity. In contrast, there are those who prefer to see a society that is deeply committed to the values of tolerance and equality. There is, of course, considerable tension between these two views of who we are as a country. Under our system of government, the Supreme Court sometimes gets to choose between different understandings of our national values and priorities according to the Constitution.
Given the fundamental issues at stake in the same-sex marriage cases, history will remember Justice Kennedy regardless of how he votes. If he chooses to uphold Proposition 8 and DOMA, he will be seen as a jurist who sided with traditional notions of marriage and family in the face of a rapidly changing society. But if he decides to invalidate the two laws, he will be viewed as one of the greatest defenders of equality principles and civil rights who ever sat on the Supreme Court.
After 20 years of fighting for same-sex marriage on the streets, around kitchen tables, in newspapers and on the Internet, and in courts and legislatures across the country, the outcome of that struggle now appears to have come down to the views of one Supreme Court justice. Whether same-sex couples, regardless of whether they live in Alabama, Indiana, or California, have the right to marry likely depends on how Justice Kennedy chooses to be remembered by future generations.