As Another Federal Appeals Court Decides in Support of Marriage Equality, the Position of Catholic Supreme Court Justice Kennedy Becomes More Pivotal

The United States Court of Appeals for the First Circuit, Boston, ruled unanimously yesterday that a crucial section of the federal Defense of Marriage Act (DOMA), which limits marriage to heterosexual couples, is unconstitutional.  The significance of this decision will not have an immediate impact on gay and lesbian couples, but could pave the way for a Supreme Court decision. (This decision joins an earlier federal court decision supporting marriage equality in California this past year which also makes a Supreme Court review likely) The New York Times reports:

“The decision. . .will have no immediate effect because the court stayed its ruling in anticipation of an appeal to the Supreme Court. Legal experts said the justices could agree as early as this fall to hear the case and arguments could come next spring, making it the first case involving the same-sex marriage law to be decided by the court.

“While the case dealt narrowly with the question of federal benefits for same-sex couples — not with the legality of same-sex marriage itself — many scholars said it was a significant moment in civil rights.

“ ‘It is another illustration of the growing consensus of the judiciary about the unconstitutionality of discriminating against gays and lesbians in the realm of marriage,’ said Geoffrey Stone, a professor of law at the University of Chicago.

“Another case, from California, does test the broader constitutionality of same-sex marriage, and as it has percolated through the courts, some proponents have said they preferred that it be in the vanguard. But others have felt that the incremental approach used in the Massachusetts case — much like the one used by opponents of abortion rights — would be more effective in achieving the movement’s ultimate goals of full equality for gay and lesbian couples.”

Justice Anthony Kennedy

Should the Supreme Court case arise next fall, commentators are already noting that a decision from the highest court in the land could turn on the decision of Justice Anthony Kennedy, a practicing Catholic, who is often the swing vote on the Court.  (Six of the nine sitting Justices are Catholic, by the way.) Earlier this week in a New York Times analysis, Bill Keller discussed the significance of Kennedy’s position:

“I’ve been trying to envision the Kennedy brief in defense of gay marriage.

“There is plenty of Kennedy to cite on the subject. Although he is a devout Catholic, he is the author of the two most important pro-gay-rights decisions handed down by the court. In 1996, in a case called Romer v. Evans, Kennedy wrote an opinion ending Colorado’s attempt to repeal local laws protecting gays against discrimination. There was no plausible explanation for Colorado’s action, he wrote, beyond “animus” — judicial language for plain bigotry. In his 2003 majority opinion in Lawrence v. Texas, Kennedy and company threw out all remaining state laws against sodomy, saying that how consenting homosexuals express their love is none of the state’s business. (The verdict prompted Justice Antonin Scalia, in an indignant dissent, to warn that Kennedy’s argument “dismantles” any constitutional case against gay marriage.)

Keller offers two reasons for Kennedy’s position on gay issues:

“In contrast to constitutional literalists like Justice Scalia, Kennedy believes the court should track evolving standards in society. The Kennedy brief can argue that the incremental but steady progression of marriage equality laws — and the polls showing accelerating public approval — are evidence that the nation is evolving toward an obvious outcome.

“Moreover, Justice Kennedy, who is widely traveled and cosmopolitan, is more open than the most conservative justices to arguments borrowed from foreign and international courts. He took note of European precedents in the ruling against sodomy laws. So the Kennedy brief on marriage could draw on the experiences of the 10 countries, from Canada to Spain to South Africa, that have legalized gay marriage, and the others (Israel and Mexico for instance) that recognize gay marriages performed in other jurisdictions.”

But Keller also cites the opinion of Yale Law Professor William Eskridge, Jr., as to why Kennedy may not support marriage equality in any upcoming Supreme Court case:

“Eskridge, too, has studied Kennedy, and notes that the justice’s passion for liberty is matched by his fear of getting too far in front of the social consensus. By the time of the Lawrence case, states had either repealed anti-sodomy laws or were not enforcing them. In contrast, most states have constitutional amendments or statutes limiting marriage to heterosexual couples, and many are of recent vintage.

“ ‘Kennedy does not vote in a way that he thinks is going to undermine the legitimacy of the court,’ Eskridge told me. Thus Kennedy has gone out of his way to stress that his earlier decisions did not necessarily lead to marriage equality.

“Eskridge supports gay marriage, agrees that it is inevitable, but believes it would be counterproductive, even dangerous, to force it on a nation that is still evenly and intensely divided. He contends that — like the Roe v. Wade legalization of abortion — a Supreme Court ruling in favor of nationwide gay marriage would inflame hostility, even violence, especially in the Southern states.”

Keller’s conclusion:

“My head tells me that Eskridge is probably right: Kennedy will be inclined to stop short of full equality now. But my heart will be rooting for Boies and Olson [analysts cited in Keller’s article who believe that Kennedy will fully support marriage equality]. If that lesbian or gay couple in Mississippi or West Virginia have the courage to ask for a marriage license, I’d like to think the country has the courage to back them up.”

I hope that Keller’s heart is smarter than his head.

–Francis DeBernardo, New Ways Ministry

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