Anthony M. Kennedy was a 44-year-old appeals court judge in Sacramento — a Republican appointee and happily-married Catholic — when he first confronted the question of whether the Constitution protected the rights of gays and lesbians.
His answer in 1980 did not make him a gay rights hero. Kennedy upheld the Navy’s decision to discharge three service members for “homosexual acts.”
But less noticed in that somewhat reluctant opinion — unusual for its time, just two weeks before Ronald Reagan was elected president — were the doubts Kennedy raised about the constitutionality of laws criminalizing gay sex.
“To many persons, the regulations [labeling homosexuals as unfit] may seem unwise,” Kennedy wrote for the U.S. 9th Circuit Court of Appeals. Outside the “unique” military context, the Constitution may well protect “consensual private homosexual conduct.”
Judges Antonin Scalia and Robert Bork, whom Reagan appointed to the U.S. appeals court in Washington, dismissed as “completely frivolous” the notion that the Constitution extended rights to gays and lesbians.
"We would find it impossible to conclude that a right to homosexual conduct is fundamental" and protected as a matter of liberty and privacy, they wrote in 1984.
Reagan would later nominate both Scalia and Bork to the Supreme Court, but Bork’s nomination failed after a momentous Senate battle. After Bork’s defeat, Reagan turned to a young lawyer he had known from his years in Sacramento — Anthony Kennedy.
It turned out to be pivotal moment in the nation's struggle over gay rights.
Kathleen Sullivan, then a young Harvard University law professor, recalls hurriedly reading Kennedy’s 1980 opinion on her way to a meeting with Senate Democrats who were considering the new nominee. “What a contrast,” recalled Sullivan, a former Stanford Law School dean. "I said, 'He’s not going to be like Bork at all.'"
Justice Kennedy, now 78, has been given many labels in his 27 years on the high court: Conservative. Moderate. Swing vote. Internationalist. Zealous defender of free speech and free spending in politics. Scalia has mocked him as a hand-wringer who agonizes over close cases.
But almost no one foresaw that the justice from Sacramento would turn out to be the Supreme Court’s most important voice on gay rights, writing every major decision over the last two decades. Now he is poised to be the crucial vote in deciding whether gay marriage will be a constitutional right nationwide. Oral arguments are set for Tuesday.
Lawyers and friends of Kennedy are reluctant to speak for the record, but most of them do not believe his views on gay rights stem from personal experience, such as having a child, relative or close friend who is gay. Instead, Kennedy’s friends and former law clerks point to a repeated theme running through his court opinions — that the Constitution protects “dignity” and “decency,” two concepts that sometimes align him with liberals.
Two years ago, he spoke for a 5-4 majority to strike down part of the Defense of Marriage Act that denied federal benefits to gay couples who legally married in their home states. Repeatedly, he said the U.S. government had demeaned the “dignity” of these couples.
He described the marriage of plaintiffs Edie Windsor and Thea Spyer as “worthy of dignity in the community equal to all other marriages.” By denying them recognition, he wrote in Windsor vs. United States, Congress had wrongly interfered “with the equal dignity of same-sex marriages.”
Although that opinion did not say all states must permit same-sex marriages, most judges and lawyers read his words as signaling just that, leading to a wave of rulings around the country striking down state bans against gay marriage.
Kennedy’s opinions were also instrumental in rejecting the legal notion that “moral disapproval” can justify discriminatory laws.
In 1986, two years before Kennedy joined the court, the justices dealt the gay rights movement its worst legal defeat. In Bowers vs. Hardwick, the court upheld laws that made gay sex a crime.
Justice Byron White, writing for the 5-4 majority, scornfully said it was “at best, facetious” to argue the Constitution protected “a fundamental right to engage in homosexual sodomy." The “majority of [the] electorate” believes gay sex is “immoral and unacceptable,” White said, and that is enough to justify the law.
When Kennedy arrived on the court, he took exception to the tone and reasoning of White’s opinion, and he told law clerks to avoid citing it. He noted that vice laws that singled out homosexuals were not “ancient,” as the court had said, but were a product of the 20th century.
Justice John Paul Stevens had dissented in the Bowers case and was eager to see the decision overturned. The first opportunity came in 1996, when the court took up a challenge to a Colorado voter initiative that said no homosexual, lesbian or bisexual could be protected from discrimination based on sexual orientation.
Kennedy was irked at what he saw as a narrow-minded, un-American law, and his opinion striking it down boldly invoked one of the most famous clashes in constitutional history.
In Plessy vs. Ferguson, the court in 1896 had upheld racial segregation on the theory that “separate but equal” railroad carriages for blacks and whites were constitutional. Dissenting alone on May 18, 1896, Justice John Marshall Harlan said: "Our Constitution … neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law."
When Kennedy spoke for the court on May 20, 1996, to strike down the Colorado law, he cited the 100th anniversary and began with Harlan’s words. Implicitly comparing racial discrimination to anti-gay discrimination, Kennedy said the laws may not “single out a certain class of citizens for disfavored legal status” based on “animosity.”
The decision in Romer vs. Evans was the first major victory for gay rights in the Supreme Court, and it made clear that states could not license discrimination based on sexual orientation.
But Bowers vs. Hardwick still stood as the law, and it was often invoked against gays and lesbians in child custody and adoption disputes. After two gay men in Houston were arrested in their apartment and charged with a sex crime, the court agreed to hear their appeal in the 2003 case of Lawrence vs. Texas.
Kennedy took the lead again and said the Texas law violated the constitutional rights to liberty and privacy. His tone could not have been more different than the Bowers opinion. The two gay men “are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” he said on June 26, 2003.
It was the final day of the court’s term, and several dozen gay rights lawyers had crowded into the quiet courtroom to hear the decision. As Kennedy slowly and forcefully read the opinion, describing all the flaws of the Bowers opinion, muffled weeping could be heard in the courtroom.
“Bowers was not correct when it was decided, and it is not correct today,” Kennedy said, his voice rising. “It ought not to remain binding precedent. It should be and now is overruled.”
The Lawrence opinion unmistakably put the Supreme Court on the side of gay rights.
“It was such an incredibly powerful statement,” said Columbia University law professor Suzanne Goldberg. “It showed an understanding for the humanity of gay people unlike anything that came before. And it opened a new era in gay rights law.”
Even as Justice Scalia dissented, he agreed on the significance, saying Kennedy’s opinion dismantled the legal distinction between heterosexual and homosexual unions. If moral disapproval is not a valid basis for discriminating, Scalia asked in 2003, “what justification could there possibly be for denying the benefits of marriage to homosexual couples?”
Five months later, Massachusetts became the first state to declare gay marriage a constitutional right.
Now the high court — guided largely by principles laid down by Kennedy — will debate whether to complete the journey and rule that same-sex couples have an equal right to marry nationwide. A decision is expected by June.