Justice Anthony Kennedy will be remembered by history almost exclusively for one thing: Being the author of every major pro-LGBT equality ruling from the Supreme Court in the last 25 years, from Romer v Evans to Lawrence v Texas to Windsor v United States to Obergefell v Ohio. Because of him, state sodomy laws were overturned, the Defense of Marriage Act was partly overturned and same-sex marriage is now legal nationwide. But all of that is in serious jeopardy, not just because he retired and is being replaced by an undoubtedly more anti-gay justice but also because his own legal reasoning is likely to be turned against those rulings.
My friend Brendan Beery, a professor of constitutional law, has a new law review article about that subject. Dan and I talked about that paper last week on the supplemental podcast we did about standards of review because that is the key to understanding the statement I made above about his own reasoning being used to overturn his rulings and tear down his legacy. Most legal scholars recognize three standards of review that the Supreme Court applies: the rational basis test, intermediate scrutiny and strict scrutiny.
The general rule is this: If the court applies the rational basis test, the law, policy or action being challenged is almost certain to be upheld because the court shows enormous deference to the government and accepts almost any justification they offer for it. If the court applies strict scrutiny, the law, policy or action being challenged is almost certain to be struck down because the burden is on the government and it’s a burden that is nearly impossible to meet. If the court applies intermediate scrutiny, the reality lies somewhere in between, but closer to strict scrutiny than to rational basis.
But Kennedy is largely responsible for a fourth standard, which some legal scholars have called “rational basis with bite.” Prof. Beery calls it “incursive rational basis review” (and the more traditional form “passive rational basis”). In this paper, he argues that this is not just some middle ground between rational basis and intermediate scrutiny, it’s a qualitatively different standard with very different implications for future cases.
In deciding all four of the cases mentioned above, Justice Kennedy could have applied intermediate or strict scrutiny. All he would have had to do is add language to the first ruling (Romer) that identifies LGBT people as a “suspect class” — that is, a group of people who have historically been discriminated against, have been the target of majoritarian attacks on their rights, and have largely been politically powerless (required to trigger strict scrutiny) or politically unpopular (required to trigger intermediate scrutiny). That’s obviously an easy case to make. But he didn’t.Instead, he applied the rational basis test and concluded that even by such a loose standard, and even showing enormous deference to the legislatures who passed the laws being challenged, the policies still failed to meet constitutional muster. On the one hand, that might seem like an even more powerful conclusion than applying strict scrutiny because it basically says that no matter what standard you apply, there is no possible justification that would make anti-gay laws constitutional. But in reality, this reasoning could just as easily be turned on its head and used for the opposite result.
Kennedy based his argument primarily on the question of animus, arguing that the legislature in each case was motivated by hostility toward LGBT people and that this violates the Establishment Clause. In Romer, Kennedy cited an earlier ruling that said, “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” So why could this be used to reverse Kennedy’s legacy? This seems so obvious now that I’m embarrassed I didn’t see it before Brendan made the argument in this article.
The conservatives on the court have already mocked the idea that LGBT people have been politically unpopular or powerless. The new justice will almost certainly agree. But they can and likely will go much further. They will argue that today, it’s the Christian right that is politically unpopular. They’ll point to anti-gay bigots being criticized, ostracized, sometimes fired from their jobs, for expressing their views. They’ll point to the strong support for LGBT people in the broader culture, like TV and movies, and the negative portrayals of Christians as evidence that the ones who are really powerless these days are the bigots, not the victims of their bigotry.
Now that this has been pointed out, I will be shocked if it doesn’t happen. You can read his full paper here.