How Will Kennedy Vote on Marriage Cases?

As with most high-profile cases these days, Justice Anthony Kennedy is likely to cast the deciding vote in the two marriage equality cases the Supreme Court has agreed to hear in the spring. And several legal scholars think that his vote for equality is all but assured:

“I expect Justice Kennedy to vote in favor of marriage equality,” said Erwin Chemerinsky, a constitutional law professor at the University of California, Irvine School of Law.

“There have been two decisions in American history expanding rights for gays and lesbians: Romer v. Evans and Lawrence v. Texas. Anthony Kennedy wrote the opinion for the Court in both,” Chemerinsky told TPM by email. “He knows where history is going and that he faces the choice between writing the next Plessy v. Ferguson and the next Brown v. Board of Education. He wants to be on the right side of history.”

Lucas Powe, a Supreme Court historian at the University of Texas, Austin School of Law, agreed. “I think Kennedy’s vote is very secure,” he told TPM. “Kennedy has a libertarian streak — he has written the key gay rights opinions and I think he will continue to do so.” …

“Justice Kennedy has authored two powerful, eloquent, and compelling rulings,” said Evan Wolfson, executive director of Freedom To Marry, “that will be central to the Windsor case, which challenges the ‘gay exception’ to the way the federal government ordinarily respects lawful marriages for federal purposes, and the Perry case, which seeks to restore the freedom to marry stripped away from gay couples by California’s Prop 8.”

This assumes that the court agrees to rule on the merits of one or both of the cases, which is far from certain. The justices have given themselves clear paths to a decision that kicks the cases out based on standing without touching the central question of marriage equality. And it leaves one key question unanswered: If he does rule in favor of equality, will he agree to declare sexual orientation to be a suspect class and apply heightened or intermediate scrutiny rather than the rational basis test? That question may have more significant implications for future cases involving gay rights than the actual outcome of these cases.

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  • Although several years old, Ashley F. Miller had once had a post speculating about how each of the justices could potentially vote if a marriage equality case got to SCOTUS.

  • Ashley notes as a “con” that Kennedy is Catholic. True, but it really seems to have zero effect on his views when it comes to homosexuality, possibly because he more than probably anyone else on the court is heavily influenced by European politics. The full weight of Kennedy’s Catholicness seems to come down when considering abortion, on which he has become steadily more conservative. If a case like Casey v. Planned Parenthood came up again, there’s no chance Kennedy would vote the same way.

  • Yes, I said “Catholicness” rather than “Catholicism.” Because I meant to. Really.

  • vmanis1

    I don’t feel comfortable calling anyone’s vote secure, but we can certainly hope that Kennedy will stay with his history on LGBT issues. There might also be some hope for Roberts, whose Obamacare decision suggests he can transcend ideology to at least some extent. As for Alito, Scalia, and Thomas, no hope whatsoever.

  • “How Will Kennedy Vote on Marriage Cases?:

    Sorta “Mavericky”, I’m guessing. He’ll either be voting against his conscience, his religion or sound legal principles.

    Gretchen, “Catolicness” will do nicely, alongside “Cath-O-Lick” and “KKKristian”, in my little demilexicon.

  • jonrowe

    Hey Ed. This is something I might want to email Eugene Volokh or some other bigwig about. We need to reread Kennedy’s opinion in Lawrence very carefully because there he seems to mention the gay marriage issue noting that the Lawrence opinion does not “slip” into a “right” to gay marriage. While SCOTUS sometimes overrules themselves, it seems to me judges almost never overrule themselves. For instance, Justice O’Connor seemed to “grow” from the Bowers case to the Lawrence case; but she MADE those two cases “fit” with one another in her concurrence (which argued sodomy laws, as per Bowers, were constitutional, but those that affected same sex couples, but not opposite sex couples, i.e., the Texas statute, were not, on equal protection grounds). Now I would have preferred if O’Connor just overruled herself in Bowers; but there’s something about consistency, ego, and human nature that is involved here.

  • jonrowe

    This is what I just got from a quick rereading of Lawrence:

    “The present case does not involve minors. It does not involve

    persons who might be injured or coerced or who are

    situated in relationships where consent might not easily be

    refused. It does not involve public conduct or prostitution.

    It does not involve whether the government must give formal

    recognition to any relationship that homosexual persons

    seek to enter. The case does involve two adults who, with

    full and mutual consent from each other, engaged in sexual

    practices common to a homosexual lifestyle.” [Bold mine.]

    I’m not sure if that language is strong enough to bind Kennedy in noting that Lawrence doesn’t “slip” into gay marriage equality (as Justice Scalia argued in Lawrence’s dissent that it did).

  • “but there’s something about consistency, ego, and human nature that is involved here.”

    Fortunately, for him, Tony Ducks only has to worry about his ego–I guess for him, ONE out of three ain’t bad.