Would Kennedy Strike Down the Defense of Marriage Act?

No. It pains me to say, but Koppelman is wrong to hope he would. We’re in this one for the long haul.

First, he’s right to point to Kennedy’s opinions for guidance. The man does love citing himself. His opinion for the Court in Gonzales v. Carhart, 550 U.S. 124 (2007) is essentially his dissent in Stenberg v. Carhart, 530 U.S. 914 (2000), which it openly cites, as if a dissent is good law. That’s… ballsy.

But Koppelman is pointing exclusively to dicta that Kennedy would have no trouble disclaiming where inconvenient, and ignoring the signals Kennedy has left for us about just how far he’ll take his own words. Here’s the critical quote in Lawrence v. Texas, 539 U.S. 558 (2003):

The statutes [banning sodomy] do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Emphasis mine. The bolded text is the critical line in Lawrence: as a “general rule” the state shouldn’t craft rules that limit personal relationships. But the colored text embodies the caveat of all caveats — the state re-acquires its power over personal relationships where the loss of its regulatory power would threaten “an institution the law protects.” What’s that mean?

This isn’t code. It’s a crystal-clear reference to marriage. No lawyer could seriously think otherwise. Kennedy’s admittedly effusive dicta in Lawrence is self-limiting. He saw Koppelman’s argument seven years ago, and expressly disclaimed it. Throwing Kennedy’s words back at him won’t work, because he’ll just point you later in the opinion.

Second, Kennedy isn’t bound by the law as it is. He’s interested in the law, the way it should be. Not in the equity-of-the-statute, good-faith extension of existing precedent way. In the bad, entirely subjective way. His handling of Gonzales should demonstrate as much. Sadly, for us, regardless of whether the limits he built into Lawrence have legal value, with them, he’s told us his personal feelings, and those are the law of this case.

Kennedy’s vote is a loss, unless he’s changed his mind, which we can’t know. More importantly, we can’t be sure of the other “liberal” Justices’ votes either. O’Connor’s aggressive concurrence in Lawrence, which leads more easily to marriage, garnered no additional votes beyond her own. It’s unclear whether subsequent decisions change that analysis. Ginsburg might be on her side now. And I have a hunch Justice Sotomayor and soon-to-be-Justice Kagan would vote for marriage equality, if only because they both have extensive academic connections, and the legal academy is near-100% on our side (really).

That’s three maybes. We need five yes votes. We don’t have them.



  1. Question Ames: You talk about this subject a LOT. You’ve stated your affinity for the opposite gender so obviously this isn’t a personal cause, but maybe you have some friends and/or relatives who are gay and want to get married? You don’t have to answer that, but I am curious about a possible third motivation. Obviously for lawyers who love constitutional law there are always some various issues worth litigating and interesting fodder for discussion floating around. It’s arguable though that there aren’t any history-changing cases on the horizon like Brown or Roe except for gay marriage. is this sort of the cause celebre of your generation?

  2. I do love the ladies. To quote Stephen Colbert, they’re pretty, smell nice, and have all the right parts.

    I do have a number of gay friends, but my interest in the issue predates my acquisition of those friends. My parents and my grandpa have always been socially “liberal” but fiscally conservative. The parents voted for Reagan and Bush I; Grandpa was elected on the Republican line for a while. But both he and my parents were repelled by the culture war taint that Republicans acquired during- and post-Reagan (Grandpa passed away before he could see it become explicit in the Bush years; parents voted for Obama). This was largely becuause the issues of women’s rights, racial equality, and gay rights were never issues of politics in our house; they were issues of politness, dignity, and class. My sister and I were taught from day one to respect all people regardless of their differences. I have a very clear memory of my dad scolding me for saying something was “gay” when I meant “bad.” I think I was ten, and my little sister six. We were smart kids, so by “scold” I mean he explained to us why it was wrong: we wouldn’t say “that’s so black,” would we? Of course not. Same thing. Dad’s a really great guy :). Equality, then, was something of a valence issue for us. We never knew people who considered someone’s sexuality material.

    Until we moved to Atlanta. Sister and I went to a private high school, and there’s a HUGE homophobic undercurrent in places like that. I’d never thought about politics, but that’s when it clicked for me: this stuff matters. Especially in politics when, sometimes, one side is right, the other is wrong, and it’s that simple.

    So when I *did* eventually meet people who actually *were* gay (they exist in Atlanta, but most stay in the closet in high school), the foundation was already there. But I have to say, it’s impossible not to know gay people, see gay couples, and ask why they’re not entitled to the same rights you are.

    The prestige issue isn’t a factor. There are always novel, hot issues of constitutional law, and until very recently, gay rights wasn’t one of them. The favorite for people in my station (young lawyers at top firms) was Guantanamo litigation. This is my favorite because of the way I was raised.

    Also our concept of prestige is probably different than the public’s at large :). “You worked on Morrison v. NAB? COOL.” Huh?

  3. “No lawyer could seriously think otherwise.”

    Really? Are you sure? All lawyers must agree with your interpretation… because you said so?

    And even if “abuse of an institution the law protects” DOES refer to marriage, one would still have to show how recognizing the right to marry someone of the same sex “abuses the institution.” The opposition must suggest how ssm prevents the law from protecting married couples or explain how denying ssm rights protects heterosexual marriages.

    This the opposition has not been able to do, which is why the issue has had such staying power over the years and has been such a legal headache for the haters.

    How Kennedy will vote on this issue is likely known only to himself. In the end, I find your conclusion of a “no” vote pretty unpersuasive.

    1. Why doe she add that line unless he sees a threat to it on the horizon?

      1. Though I agree with your sentiment, considering that it was a decision overturning Bowers on the due process ground, that line could read more generally applying both to hetero/homosexual relationships.

  4. I don’t think there’s anything wrong with Kennedy citing to dissents. Dissents may have been more correct than the majority ruling, after all, for any number of reasons: more accurate framing of the facts, better logic, more fidelity to the statutory or Constitutional text, acknowledging a broader set of precedents, etc. The whole reason for writing a dissent, after all, is to say that the majority’s wrong and should be overturned, and why. If future judges and justices weren’t going to grok dissents from time to time, they’d be nothing but an exercise in vanity – which they most assuredly are not.

    What I think is unseemly is just what you said first: the man loves citing himself. That’s in my mind an indicator that your condemnatory sixth paragraph is spot-on.

    And re: your response to Mike, do you know has anybody from our class come out yet? Odds are good there was a handful in the closet, but everyone I know of who was out then or has come out since was either older or younger than us.

  5. […] interesting post presents the contrarian case for believing that Anthony Kennedy will rule in favor of gay marriage […]

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