Wednesday, June 27, 2018

What Will Supreme Court Justice Anthony Kennedy's Retirement Mean for LGBTQ Rights?

Supreme Court Associate Justice Anthony Kennedy (Eric Thayer/Getty Images)

Vox reports by Dylan Matthews: 

Anthony Kennedy, the longest-serving member of the Supreme Court, is retiring.

Arguably, Kennedy’s greatest legacy on the Court — and certainly what he hopes will be his greatest legacy — are his decisions expanding the scope of LGBTQ rights.

In 1996’s Romer v. Evans, he authored the Court’s first major pro-gay rights decision, invoking the 14th Amendment’s Equal Protection Clause in striking down a Colorado state constitutional amendment that prevented cities and towns from adopting their own bans on discrimination against gays, lesbians, or bisexuals.

Seven years later, in 2003’s Lawrence v. Texas, Kennedy wrote for a 6-3 court invalidating Texas’s ban on oral and anal sex between two men or two women. That decision overrode 1986’s Bowers v. Hardwick, a decision upholding Georgia’s sodomy law. In Lawrence, Kennedy tellingly did not use equal protection reasoning but instead found that any bans on consensual sexual behavior between adults, regardless of the genders involved, violate the due process clause’s guarantee of personal liberty.

A decade later, in 2013, Kennedy wrote the 5-4 decision in United States v. Windsor overturning the federal Defense of Marriage Act on equal protection grounds. The decision required the federal government to respect and honor same-sex marriages at the state level, while still allowing states to ban same-sex marriage if they wished. And two years after that, in 2015’s Obergefell v. Hodges, he swept away bans on same-sex marriage altogether, ending with a stirring tribute to the value of marriage that’s become a mainstay of wedding readings in the years since.

Gay rights supporters wave flags in front of the Supreme Court to celebrate the ruling in favor of same-sex marriage on June 26, 2015. Mark Wilson/Getty Images
It is fair, then, for gay rights advocates to worry about what could happen to the Obergefell precedent now that Kennedy has retired.

There are certainly some conservatives on the Court who are interested in chipping away at the ruling’s guarantees. Gorsuch, Thomas, and Alito in 2017 dissented from a ruling requiring Arkansas to list same-sex parents on their children’s birth certificates, arguing that to do so does not violate Obergefell. That, Slate’s Mark Joseph Stern argued, set the stage for a legal strategy based on gradually chipping away at the right to marriage until it’s practically worthless.

“[John] Roberts would be free to rewrite Windsor and Obergefell however he wants,” Stern writes. “Roberts could remain faithful to the original text of both decisions. He could also reverse them. But the likeliest possibility is that Roberts first cuts them down to a single guarantee—the right for same-sex couples to receive a marriage license with no attendant privileges. In case after case, Roberts could vote to allow discrimination against same-sex couples but affirm their right to the license itself.”

The trouble with this argument is that we don’t actually know where Roberts stands on the precedential value of Obergefell. He didn’t register a dissent in the Arkansas case the way his conservative colleagues did; it’s possible he dissented without letting that dissent be recorded but it’s also possible he sided with the liberals.

Moreover, majorities of Americans in 44 of the 50 states now support same-sex marriage. The overwhelming public opinion shift in favor of marriage equality might make Roberts more hesitant to chip away at the right, and it also might deny the Court opportunities to take up the issue, if the popularity of same-sex marriage prevents states from trying to restrict the right in ways that would be challenged and make it to the Court.

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