Justice Anthony Kennedy: A Surprising Friend to Gay Rights

Kennedy picture at center

The New York Times has a piece on Justice Anthony Kennedy who has become a pariah in Christofascist circles and a hero in gay rights circles.  That Kennedy would find himself viewed this way is a bit of a surprise if one remembers that he was nominated to the U. S. Supreme Court by Ronald Reagan who conveniently closed his eyes to the AIDS epidemic in its beginning years.  In deed, when appointed, few advocates for gay rights would have expected that Kennedy would go on to author three landmark decisions that have helped propel gay equality, the most recent being the majority opinion in United States v. Windsor - which identified the true motivation behind anti-gay laws, anti-gay animus - and which may yet unleash a whirlwind nationwide against anti-gay laws.  Here are article highlights:

The San Francisco Gay Men’s Chorus sang “Give ’Em Hope” for a revered and in some ways surprising guest who shared a California stage with them last month: Justice Anthony M. Kennedy. 

In remarks from the stage, San Francisco’s mayor, Edwin M. Lee, thanked the justice “for upholding the Constitution and justice for all” in his majority opinion in June in United States v. Windsor, a major gay rights victory. 

“Freedom is always a work in progress,” Justice Kennedy said in his own remarks, making clear that there was more work to be done. 

Justice Kennedy has emerged as the most important judicial champion of gay rights in the nation’s history, having written three landmark opinions on the subject, including this summer’s Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation’s civil rights law, and they have cemented his legacy as a hero to the gay rights movement. 

The praise now being showered on Justice Kennedy by gay rights advocates — and the deep disappointment of conservatives — would have been hard to imagine when President Ronald Reagan nominated him to the Supreme Court in 1987. Gay rights groups were more than a little wary then.  

The justice’s trajectory since then has been a product of overlapping factors, associates and observers say. His Supreme Court jurisprudence is characterized by an expansive commitment to individual liberty. He believes that American courts should consider international norms, and foreign courts have expanded gay rights. His politics, reflecting his background as a Sacramento lawyer and lobbyist, tend toward fiscal conservatism and moderate social views. And he has long had gay friends. 

Romer v. Evans, in 1996, struck down a Colorado constitutional amendment that had banned laws protecting gay men and lesbians. Lawrence v. Texas, in 2003, struck down laws making gay sex a crime. And in June, Justice Kennedy wrote the Windsor decision. 

In 1987, gay rights advocates could see little of this coming.

In 1986, a month after the Supreme Court upheld a Georgia law that made gay sex a crime in Bowers v. Hardwick, Judge Kennedy, not yet a justice, gave a speech at Stanford expressing reservations about the ruling. He contrasted it to a 1981 decision from the European Court of Human Rights striking down a similar law in Northern Ireland. 

Seventeen years later, Justice Kennedy cited the European court’s decision in his majority opinion in Lawrence v. Texas, which overruled Bowers.  “Its continuance as precedent demeans the lives of homosexual persons,” Justice Kennedy wrote.

These days, Professor Dorf said, there is more praise than criticism, and Justice Kennedy has joined a select group.  “What Earl Warren was to civil rights and what Ruth Bader Ginsburg was to women’s rights,” he said, “Kennedy is to gay rights.”