On Tuesday of this week, the U.S. Supreme Court will be hearing oral arguments in the marriage equality cases that it will rule on by the end of the court’s session at the end of June. Although there are nine justices on the court, six of whom are Catholic, much attention will be focused on one of them, Justice Anthony Kennedy, who has often been described as the “swing vote” on a court which often hands down 5-4 decisions. Kennedy sometimes votes with the conservative wing and sometimes with the progressive wing.
In three previous cases concerning lesbian and gay people (Romer v. Evans; Lawrence v. Texas; and Windsor v. United States), Kennedy’s vote was instrumental to form a majority in favor of more equality for this community. In addition, he wrote the majority opinions for all three cases.
How did Anthony Kennedy get to a place where he supports equality for lesbian and gay people? At the time of Windsor v. United States, the decision which overturned key sections of the federal Defense of Marriage Act, Bondings 2.o speculated that his Catholic upbringing may have influenced his support of human dignity and equality. We pointed to what we thought was one of the most Catholic statements in the opinion he authored:
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
A recent Associated Press story published on The Huffington Post examined Kennedy’s background and found another possible reason for his support of equality:
“The Irish Catholic boy who came of age in Sacramento after World War II is an unlikely candidate to be the author of the Supreme Court’s major gay rights rulings.
“But those who have known Justice Anthony Kennedy for decades and scholars who have studied his work say he has long stressed the importance of valuing people as individuals. And he seems likely also to have been influenced in this regard by a pillar of the Sacramento legal community, a closeted gay man who hired Kennedy as a law school instructor and testified on his behalf at his high court confirmation hearings in Washington.”
The closeted gay man was Gordon Schaber, a California law school dean, who hired Kennedy to teach at McGeorge School of Law, Sacramento, and who became his mentor. Though there is no evidence that they ever discussed gay legal issues, many people who knew them said that Schaber had a strong influence on Kennedy.
The Huffington Post story also considered other theories of why Kennedy votes pro-gay:
“Another longtime friend, former California Gov. Pete Wilson, said Kennedy always has evaluated people as individuals, not as members of a group. Kennedy, he said, sees everyone ‘based on their merits.’
“Justice Ruth Bader Ginsburg suggested in an interview last summer that one reason for changes in public opinion in favor of same-sex marriage was that, as gay Americans became more comfortable talking about the topic, people learned that they had gay friends and relatives, ‘people you have tremendous respect for.’ She was describing what sociologists call the contact theory, the idea that the majority group’s interactions with a minority will break down stereotypes and enhance acceptance of the minority group.”
Though a Catholic, Kennedy’s views on same-gender relationships are clearly not those of the hierarchy, yet he still seems influenced by Catholic discourse which promotes human dignity. In Lawrence v. Texas, the case which struck down anti-sodomy laws, he wrote:
“It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”
We see the same expression of Catholic, though not hierarchical, values expressed in Windsor v. United States:
“It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.”
A recent Seattle Times article noted the pivotal role that Kennedy will play on Tuesday:
“ ‘Everybody in that courtroom will be waiting to hear what Justice (Anthony) Kennedy has to say,’ said James Esseks, director of the American Civil Liberty Union’s Lesbian, Gay, Bisexual, Transgender & AIDS Project.“Kennedy, 78, is a big reason same-sex marriage advocates enter the Tuesday oral argument feeling cautiously optimistic.”