With the Ninth Circuit Court of Appeals ruling last week that California's Proposition 8 is unconstitutional, the debate on the constitutionality of marriage rights is hurtling toward the Supreme Court with increasing velocity. If and when the case reaches the Supreme Court, the decision will depend greatly on Justice Anthony Kennedy.
Following the Appeals Court ruling last week, the next step for the case is for the backers of Proposition 8 to file an appeal. They can appeal the ruling to one of two places: a larger panel of judges from the Ninth Circuit or directly to the Supreme Court of the United States. Appealing to a larger panel of the circuit court, however, is essentially just a pit stop on the way to the Supreme Court, since another Ninth Court ruling -- even by a larger panel -- can still be appealed to our nation's highest court.
Once the case reaches the Supreme Court though, there is no guarantee the Justices will hear it. The Supreme Court receives thousands of requests to hear cases each year, and only chooses a small percentage of those to hear and rule on, based on which cases they think actually concern constitutional issues. For the case to be heard, four of the nine justices must vote to put the case on the Court's calendar.
The question of whether or not the Court will hear this case also might hinge on the impact of not hearing it. If the case is directly appealed to the Supreme Court, and they choose not to hear it, the Ninth Circuit Court's ruling stands, and gay marriage would be legal in California. The more conservative Justices, like Justice Antonin Scalia, could feel compelled to take the case simply to ensure gay marriage does not become legal by the Court's inaction.
Some experts argue that Kennedy is not willing to offer an opinion that effectively states gay marriage is a constitutional right because of such a ruling's highly political nature. However, this way of thinking ignores not only Kennedy's history in rulings, but also his astute dedication to both the rule of law and his position on the court.
Far from being a leftist ideologue or right-wing strict constructionist, Kennedy has affirmed the Boy Scouts' right to discriminate and a woman's right to choose. He has struck down both affirmative action and anti-sodomy laws. Kennedy is often seen as a flip flopper, but his decisions speak more to a foundational concept of individual liberty than to confusion in his jurisprudence. To him, the Constitution is clear on the government role in honoring our rights as individuals, from freedom of speech to the equal protection clause.
While Justice Kennedy has allowed private businesses to prohibit homosexual membership, his views on the right to determine one's own sexual orientation and to be treated equally by the government have been clearly stated. Kennedy has repeatedly been in the majority, at times writing the majority opinion, for cases that strike down the criminalization of homosexuality. He has specifically expressed that the core of liberty, one of the foundational principles of our constitution, is the right to define one's own existence. If the right to be gay is among those individual rights protected by the constitution, then gay persons are subject to the same treatment under the law as heterosexuals.
Kennedy consistently writes in court opinions that the equal protection clause of the 14th Amendment is a constitutional guarantee for individual liberty, and that applying preferential treatment to certain groups denies individuals in other groups the same liberties. Therefore giving legal status only to heterosexual marriages allows the special privileges and recognition of a relationship to one group of people, while clearly denying it to another group.
The equal protection clause speaks to equal protection under the law. While marriages are often held in churches and synagogues, and performed by ordained ministers, the law is what is in question here. The state grants marriage licenses, and with them, certain rights and privileges to both spouses. It is these privileges, not the ability to marry in the local chapel, to which the Constitution applies. Based on his record, Kennedy will likely argue that it is these privileges - currently granted unequally by all but seven states (Washington State's newly signed marriage equality law will take effect June 7 unless an anti-gay marriage movement there gathers enough signatures by June 6 to put the law on the ballot in November) and the District of Columbia -- that are in direct violation of the 14th Amendment.
Justice Kennedy won't vote in favor of gay marriage because it is morally correct. In fact, he doesn't think the Constitution is designed to determine morality.
"Our obligation is to define the liberty of all, not to mandate our own moral code," Kennedy wrote in Planned Parenthood v. Casey, in 1992.
What Kennedy will do is use the very text of the Constitution as a guide and ask if the government is giving preference to one group over another. It is the preferential treatment that will concern Kennedy, and ultimately lead him to decide that state-sanctioned marriage must apply to gay couples as well.
As a bumper sticker in support of gay marriage said: "If we have to get married, so do they."
The constitution is a powerful document -- one dependent not just on the strength of principles but on the wisdom of resiliency. The brilliance of the founders was not just in the drafting itself, but in including an articulated revision policy. Justice Kennedy himself has identified the promise of the Constitution's enduring wisdom, writing in Lawrence v. Texas, in 2003, "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Jelena Hasbrouck is a graduate student in public affairs and practical politics at the University of San Francisco. If you would like to contribute as a citizen journalist to The Huffington Post's coverage of American political life, please contact us at www.offthebus.org.
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