By Arthur S. Leonard. This article appears in the Summer Issue of LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments, here and abroad. Subscribe:
Justice Anthony M. Kennedy’s announcement on June 27 that he would retire from active service on the U.S. Supreme Court as of July 31, 2018, opening up a vacancy that President Donald J. Trump can fill with the approval of a bare majority of the U.S. Senate, whose political balance is now 51–49 Republican, portends a serious setback for LGBT rights in the years ahead. Kennedy cast a crucial vote and wrote powerfully emotional opinions to establish the dignity of LGBT people under the Constitution’s 5th and 14th Amendments. Justice Kennedy will be remembered as the author of four major Supreme Court opinions that worked a revolution in United States constitutional law concerning the rights of sexual minorities.
Before his opinion for the Court in Romer v. Evans, 517 U.S. 620, was announced on May 20, 1996, the Court had never ruled in favor of gay litigants in an Equal Protection Case. In Romer, the Court invalidated a Colorado constitutional amendment, adopted in a voter initiative that banned the state from protecting gay people from discrimination. Kennedy condemned the measure as an attempt to render gay people as “strangers to the law,” and found it to be an obvious violation of equal protection, in an opinion speaking for six members of the Court. This led Justice Scalia to complain in dissent that the Court’s opinion was inconsistent with its ruling a decade earlier that sodomy laws were constitutional, and at the same time signaled to LGBT rights litigation groups that it was time to return to the federal courts to challenge sodomy laws.
Before his opinion for the Court in Lawrence v. Texas, 539 U.S. 558, was announced on June 26, 2003, the Court had never used the Due Process Clause to strike down an anti-gay law. In Lawrence, Kennedy wrote for five members of the Court that the Texas Homosexual Conduct Law, by making private consensual adult gay sex a crime, had unconstitutionally abridged the liberty of gay people. (Justice O’Connor concurred in an opinion focused solely on the equal protection clause.) This time, Justice Scalia’s dissent denounced the Court’s opinion as opening the path to same-sex marriage, signaling to LGBT rights litigation groups that the Court’s opinion would be helpful in the already-launched marriage equality project. The Lawrence opinion was prominently cited by the Massachusetts Supreme Judicial Court just months later when it issue the first ruling by a state’s highest court in favor of marriage equality (albeit based on the state’s constitution, not the 14th Amendment). See Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).
Kennedy’s opinions in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), both 5–4 cases, established a right to marriage equality for LGBT people in the United States, the most populous nation so far to allow same-sex couples to marry. In Windsor, Kennedy wrote that the Defense of Marriage Act, a statute requiring the federal government to refuse to recognize same-sex marriages that were valid under state law, violated both the Due Process and Equal Protection requirements of the 5th Amendment, emphasizing the affront to the dignity of gay married couples. In dissent, of course, Justice Scalia accused the Court of providing a framework for lower courts to strike down state bans on same-sex marriage. Scalia’s dissent was prophetic. Just two years later, the Court ruled in Obergefell%that the 14th Amendment’s guarantees of Due Process and Equal Protection required the states to allow same-sex couples to marry and to recognize such marriages for all legal purposes. In the intervening years, lower courts had cited and quoted from Kennedy’s Windsor opinion (and Scalia’s dissent) in finding bans on same-sex marriages unconstitutional. Kennedy’s vote with the majority in the subsequent per curiam ruling in Pavan v. Smith, 137 S. Ct. 2075 (2017), reinforced Obergefell’s holding that couples in same-sex marriages enjoyed the “full constellation” of rights associated with marriage, as did his vote in V.L. v. E.L., 136 S. Ct. 1017 (2016), another per curiam ruling, affirming that states were obligated to extend full faith and credit to second-parent adoptions granted by the courts of other states. Justice Kennedy also joined the majority in a concurring opinion in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), rejecting a 1st Amendment challenge to a public university law school’s refusal to extend official recognition to a Christian student group that overtly discriminated against gay students.
When LGBT litigants lost Kennedy’s vote, however, they lost the Court. In his most recent LGBT-related decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172, 2018 U.S. LEXIS 3386 (June 4, 2018), while reiterating his concern for the dignity of gay people to be able to participate without discrimination in the public marketplace, Kennedy apparently could not bring himself to reject the religious free exercise claims of a Christian baker, and so engineered an “off ramp” by embracing a dubious argument that the Colorado Civil Rights Commission was so overtly hostile to the baker’s religious beliefs that he had been deprived of a “neutral forum” to decide his case. (Kennedy’s concern for the dignity of the baker was signaled during oral argument, when Kennedy lectured Colorado’s solicitor general about the hostility to the baker’s religious beliefs that Kennedy believed had been shown at the state civil rights commission’s hearings.) Thus, Kennedy was able to assemble a 7–2 vote to overturn the Colorado Court of Appeals ruling in that case, without directly ruling on whether the baker’s religious objections would override the non-discrimination requirements of Colorado law, leading to oversimplified media headlines suggesting that the baker had a 1st Amendment right to refuse to make the cake.
Kennedy also joined the majority (without writing) in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a 5–4 ruling holding that the Boy Scouts had a 1st Amendment right to deny membership to an out gay Assistant Scoutmaster, based on BSA’s rights of free speech and expressive association. He was part of the unanimous Courts that rejected a constitutional challenge to the Solomon Amendment, a law denying federal money to schools that barred military recruiters (mainly because of the Defense Department’s anti-gay personnel policies), in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), and that, reversing the Massachusetts Supreme Judicial Court, held that a gay Irish-American group could be barred from marching in Boston’s St. Patrick’s Day Parade in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995). However, in those cases all of the more liberal members of the Court joined in the unanimous opinions, so Kennedy’s vote did not make a difference to the outcome.
While Justice Kennedy’s majority opinions in the four major LGBT rights cases were triumphs for LGBT rights, they were not viewed as unalloyed triumphs in the halls of legal academe. Commentators who agreed with the results were frequently harshly critical of Kennedy’s opinions in terms of their articulation of legal reasoning and doctrinal development. The Romer decision left many scratching their heads, trying to figure out whether the Court had applied some sort of “heightened scrutiny” to the Colorado constitutional amendment, puzzled about the precedential meaning of the ruling for later LGBT-related equal protection challenges. There was similar criticism of the opinions in Lawrence, Windsor, and Obergefell.
Kennedy failed to use the doctrinal terminology familiar to constitutional law scholars and students, such as “suspect classification,” “heightened scrutiny,” “compelling state interest” and the like, leaving doubt about the potential application of these rulings. Indeed, three justices dissenting from the per curiam ruling in Pavan v Smith in an opinion by Justice Gorsuch claimed that the Court’s Obergefell ruling had left undecided the question in Pavan — whether Arkansas had to list lesbian co-parents on birth certificates — and the Texas Supreme Court expressed similar doubts about the extent of Windsor and Obergefell in refusing to put an end to a dispute about whether the city of Houston had to extend employee benefits eligibility to the same-sex spouses of city employees. At the time of writing, this case is still “live” in the Texas courts, and might well provide a vehicle for a more conservative Court absent Kennedy to chip away at marriage equality, as could several pending wedding vendor cases. While some courts, such as the 9th Circuit Court of Appeals, saw Kennedy’s opinions as extending protected class status to gay people for equal protection purposes, others insisted that those rulings had produced no such precedent, and plenty of lower courts have rejected the idea that Lawrence recognized a fundamental right for private, adult, consensual sex in contests other than homosexuality! The problems created by Justice Kennedy’s judicial writing style were expounded in detail by law professors Kent Greenfield and Adam Winkler in an op-ed article published in the New York Times shortly after Kennedy’s announcement was released, title “Without Kennedy, the Future of Gay Rights is Fragile” (June 28).
During his last term on the Court, Kennedy seemed to have abandoned his willingness to “swing” from time to time into alliance with the four Democratic appointees to produce a progressive result. Rather, it was Chief Justice Roberts or Justice Gorsuch who joined with more liberal judges in a handful of 5–4 decisions where Kennedy was with the conservative dissenters, and all the other 5–4 decisions were strict party-line votes, 5 Republican appointees (including Kennedy) versus 4 Democratic appointees in dissent.
Justice Kennedy’s announcement of retirement effective July 31, 2018, most likely portends a retreat from LGBT rights leadership by the Supreme Court, and a possible opening for conservative justices to cut back in various ways on the precedents created by Kennedy’s major LGBT rights decisions. Assuming that President Trump nominates and the Republican majority in the Senate confirms a justice with the ideological and doctrinal profiles of Neil Gorsuch or Samuel Alito, the crucial fifth vote to make a pro-LGBT majority would seem to be missing.
However, Supreme Court appointments are a tricky business. In the past, presidents have sometimes been astounded at the subsequent voting records of their appointees. President Dwight Eisenhower called his appointment of William J. Brennan one of the worst mistakes of his presidency, as Brennan went on to be a leader of the Court’s left wing. Had he lived long enough to see it, President John F. Kennedy might have been similarly disappointed by the rightward drift of Byron R. White, his nominee who wrote the blatantly homophobic decision in Bowers v. Hardwick, 478 U.S. 186 (1986), which upheld Georgia’s felony sodomy law, calling a claim to constitutional protection for gay people to be “at best facetious.” President Richard Nixon was undoubtedly disappointed with the leftward drift of Harry Blackmun, author of Roe v. Wade, 410 U.S. 113 (1973), the Court’s key abortion rights decision, and a vigorous dissenter in Bowers v. Hardwick. President Ronald Reagan appointed Anthony Kennedy assuming that he would provide a vote to strike down abortion rights, but Kennedy was part of a moderate Republican coalition (joining with Justices Sandra Day O’Connor and David Souter) that voted to reaffirm those rights in Planned Parenthood v. Casey, 505 U.S. 833 (1992). President George H. W. Bush’s appointment of Souter ended up being a massive disappointment to conservatives, as Souter frequently voted with the Democratic appointees and the leftward veering John Paul Stevens, who had been appointed by President Gerald Ford and ended up being much more liberal than Ford likely expected. Souter became so disillusioned by the Court’s 5–4 decision in Bush v. Gore, 531 U.S. 98 (2000), handing the presidency to George W. Bush after Albert Gore decisively won the national popular vote and may well have been entitled to the Florida electoral votes needed to put him over the top, that he retired from the Court prematurely, to judge by the more usual retirement ages of his colleagues.
Thus, the past records of Supreme Court nominees are not inevitably accurate in predicting how they will vote on the Court over the long term. Supreme Court justices frequently serve for several decades (Kennedy’s service stretched to 30 years), and the looming constitutional issues at the time of their appointment are inevitably replaced by new, unanticipated issues over the course of their service. Also, past records as federal circuit or state appellate judges are not necessarily good predictors of how justices will vote on constitutional issues on the Supreme Court, when they are not constrained as lower court judges are by Supreme Court precedents. The Supreme Court is like no other court in the United States, in which the constraints of constitutional precedent faced by lower court judges are significantly loosened. Because the Supreme Court can reverse its prior holdings and in theories and trends in constitutional and statutory interpretation evolve over time, making long-term predictions can be difficult. But the examples of Brennan, Souter and Kennedy have caused the confirmation process to change drastically, and the possibility of an appointee turning out to be a total surprise appears to have diminished sharply ever since the controversy over Robert Bork’s nomination by Reagan in 1987, but it is not entirely gone. One can hope that a Trump appointee will not be totally predictable in the Alito/Gorsuch mold, although that may be unduly optimistic when it comes to LGBT issues. In his first full term on the Court, Justice Gorsuch has not cast 100% predictable votes, but his dissent in Pavan and concurrence in Masterpiece do not suggest that his views of LGBT rights have mellowed in his short time on the Court. Only time will tell, and commentators speculating particularly on how this change on the Court will affect LGBT rights have tended to focus more on the Chief Justice — whose concern for institutional legitimacy may override his politics at times — as possibly providing the fifth vote against outright overruling of important LGBT-related precedents, despite his dissents when they were rendered. A slender reed, indeed. . .
CNN reported on June 29 that the White House expected a nomination to be forthcoming by July 9, after this issue of Law Notes goes to press.