Will Justice Kennedy Be Responsible for Marriage Equality Going the Way of Abortion Access?


This week the Supreme Court will hear arguments over the constitutionality of same-sex marriage, and all eyes are on Justice Anthony Kennedy—as they should be, for the fate of marriage equality likely rests in his hands.

Unlike other cases that implicate personal privacy rights, the marriage equality cases appear before the court framed in part as a conflict between state rights and federal power. We don’t often frame social issues like marriage equality as being only about the balance of power between the federal government and the states. That’s because, aside from the last neo-Confederate holdouts, we’ve largely accepted that a person’s rights should not be defined by that person’s state of residence. In other words, we accept that a citizen of Alabama should be entitled to the same basic rights and protections as a citizen of California. But in both of the the marriage equality cases before the Supreme Court right now, the question is, “Is marriage a fundamental right, and if so, to what degree can states legally restrict that right?”

Framing the fight over marriage equality as a battle over federal and state powers has risks. The greatest of these risks is that it provides an opportunity for the conservative court to again limit the reach of federal power while granting states license to pass and enforce state-level marriage equality bans. Much like the battle over the constitutionality of the Affordable Care Act, the Supreme Court could do so in a way that looks like a win to marriage equality advocates but threatens broader equality rights overall. For Justice Kennedy, the key swing vote in these cases, this may be too good to refuse.

In NFIB v. Sebelius, the decision that upheld the constitutionality of the Affordable Care Act, Chief Justice John Roberts and the rest of the court embraced the legal argument that states have the power to limit the federal government when it came to establishing and administering the requirements of the federal Medicaid program. This was a radical re-understanding of the relationship between the federal government and the states. The law was upheld, but the decision fueled hard right social conservatives in attacking social benefits programs. It was a victory for social justice advocates, but one that has come at a steep cost, as states including Texas and Arizona push for ways to opt out of social benefit programs like Title X.

Marriage equality faces a similar threat. In Hollingsworth v. Perry, the court will hear arguments as to whether Proposition 8, a California voter initiative that defined marriage as a union between a man and a woman, violates the federal Constitution. In U.S. v. Windsor, the court will hear arguments challenging the part of the federal Defense of Marriage Act (DOMA) of 1996 that defines marriage as “only a legal union between one man and one woman as husband and wife” in determining federal benefits.

Should the court defer to the states on the issue of defining marriage and uphold Prop 8 while striking Section 3 of DOMA, then, much like the battle over access to abortion care, the battle over marriage equality will move primarily to the states. And much like the battle over abortion access, it could very well be Justice Kennedy that takes it there.

For Kennedy, the issue of fundamental rights and privacy is a cornerstone in his legacy on the court. In 2003, he authored the opinion that struck state sodomy laws as an unconstitutional violation of the right to privacy in the landmark case Lawrence v. Texas. Eleven years earlier, when the court was asked to overturn Roe v. Wade in Planned Parenthood v. Casey, Justice Kennedy reportedly sided at first with the conservative wing to reverse Roe‘s foundational privacy ruling, but later changed his vote after meeting with Justice Harry Blackmun, the author of the Roe decision, who expressed his concern to Kennedy that history would judge him harshly should he be the vote to overturn Roe. With public opinion squarely in support of marriage equality, it seems likely that Kennedy is  remembering Blackmun’s warning this week.

At least 31 states already have laws that define marriage as the union of one man and one woman. Why wouldn’t Justice Kennedy vote to respect those laws under the guise of reigning in the federal government? It’s just the kind of straw-man reasoning that justified his “support” of privacy rights in Roe, despite his future decisions that have done nothing but undermine that right. Next, he could do so in an opinion that would ultimately side with a same-sex couple.

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  • cmarie

    I hope Marriage Equity is affirmed by the Supreme Court and I think it will be. Let’s imagine for a minute though the worst possible scenario. A same sex couple living in Alabama will be disappointed if this fails to pass but neither of them will be dragged screaming out of the house and neither will their kids. There is, however a case soon to be heard by the Supreme Court where they might decide to do just that. Veronica Brown is a Cherokee child currently living in Oklahoma with her father, stepmother, big sister and baby brother. She is by all accounts a happy, healthy, bright and beautiful little girl. When pregnant, Veronica’s non First Nations mother decided to place her for adoption. She knew the baby’s father would never agree so she just didn’t tell him. Knowing that he was soon due to be deployed to Iraq, lawyers for the agency and would be adopters figured if they avoided telling him long enough he would be unable to fight the adoption even if he wanted to. Veronica was four months old when her father (literally days from deployment) was finally notified that his daughter was not in fact with her natural mother but with another couple who wanted to “adopt” her. He made clear his opposition and absolute intention to raise his daughter. The would be adopters fought him in court for the following 23 months. If not for the fact that Dusty (the father) had First Nations ancestary he may well have lost his child to forced adoption. It’s certainly happened in the past. Fathers who have only European or African ancestary have lost their children to “adoption” simply because they were lied to. The state of Utah outright allows fraud so long as the result is “adoption” by a Morman family. Sergeant Achane just finally was able to bring his one year old daughter home after fighting for well over a year against a corrupt, white, Morman couple who wanted to fantasize that she was theirs. Another African American father returned from Afghanistan hoping to find the grave of his still born son. He researched for months before learning that his child was not a dead boy but a living girl forcibly being held in Utah. He’s still fighting to bring her home. Long story short, Dusty (mericfully) was able to bring his daughter home in December 2011. She was at that time a little past two. The would be “adopters” argued that seperation from them would be traumatic for her because kids grow attached to their caretakers. Apparently though, they no longer believe caretakers mean much because now that Veronica is three and a half they want to take her away from her father and family, bring her back to South Carolina, tell her she’s theirs after all and call it “adoption”. AND the Supreme Court is actually considering letting them do exactly that. The multi billion dollar adoption industry is fighting the Indian Child
    Welfare Act and anybody else with the nerve to think they should be able
    to raise their own natural children. No case heard this spring is going to be of more importance to American families because this family isn’t just worried about respect… their worried about their little girl being taking by the powerful adoption lobby…. long after she’s returned to her actual home and long after she’s forgotten her would be delusional “adopters”.

    • http://www.facebook.com/elizabeth.cassebennethum Elizabeth Casse Bennethum

      Wow I hope the father wins…

    • http://www.facebook.com/Feral.9.Hex Carla Clark

      Um, why are you going on and on about a case that has nothing to do with the topic? Besides, the very REASON that same-sex couples want the right to marry is BECAUSE the same thing you outlined DOES happen to them, way more often than it does to heterosexual couples. And why are you going on and on about one case where a father was injured by the law on their adoption practices, when it MOST LIKELY occurs to WOMEN, far more often? Sorry, but a First Nations man still has MORE privilege on the gender axis than any woman does.