Why Kennedy might not take the bait in Perry v. Schwarzenegger

Tim Kowal Contributor
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When Perry v. Schwarzenegger, the case that will determine Californians’ right to define one of their most sacred institutions, reaches the Supreme Court, all eyes will be on Justice Anthony Kennedy.  Having authored the Court’s only two opinions expressly favoring the rights of homosexuals, and finding himself the perennial tie-breaker flanked by four reliable conservatives and four reliable liberals, Kennedy will almost certainly author the opinion that decides whether a state may continue to adhere to the traditional definition of marriage as one man and one woman.  Yet, with tensions high on both sides of the debate, few can get a read on which way Kennedy is likely to vote.

However, Kennedy did leave some clues in his two previous opinions concerning gay rights.  These clues suggest that, quite possibly, he may decline, for a third time, to confer any sweeping new constitutional rights or status upon homosexuals.

First, Kennedy’s two earlier opinions in favor of homosexuals have been very cautiously and narrowly written.  In both his 1996 opinion in Romer v. Evans and his 2003 opinion in Lawrence v. Texas, Kennedy declined to announce a “fundamental right” to engage in homosexual sex, which would have required states to demonstrate that any laws burdening homosexuals are narrowly tailored to achieve a compelling government interest.  This would have been the most straight-forward and predictable rationale for reaching the results in those cases.  The fact that Kennedy eschewed this approach, advancing instead a more labored and unlikely rationale, strongly suggests he is not interested in taking up arms in this culture war.  In other words, Kennedy probably intended to limit Romer and Lawrence to their facts.

Second, following the principle Kennedy announced in Romer and Lawrence would lead to severe and startling unintended consequences.  Justice Scalia’s dissents in both cases challenged that, applied faithfully, the principle at the heart of those decisions—that moral values have no place in the law—would void laws directed at any other unsavory conduct prohibited throughout the states.

Thus, suddenly unconstitutional would be all laws respecting suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so forth.  The rule may even spell the end of many environmental protection laws, to the extent they are founded on moral values about preservation for the benefit of future generations with no present legal interests.

Yet, Kennedy’s demonstrated inconsistency in the application of principle is perhaps cause for reassurance, for it suggests there is little reason to presume he will “carry things to their logical conclusion.”  On the one hand, Scalia excoriated Kennedy for offering up an empty guarantee that Lawrence did not extend to the question of traditional marriage.  On the other hand, Kennedy is just the man to enforce empty guarantees—particularly one of his own making.  Kennedy himself repeatedly indicated that he was not prepared to extend the rule of Lawrence—whether or not compelled by principle and logic—beyond laws criminalizing homosexual conduct.

The Perry decision rests on a rule that would obliterate laws that reflect our core values as a people.  On the chopping block are not only laws respecting marriage, but laws respecting other deeply held moral issues concerning the nature and value of human life.  With carefully defined exceptions in our Constitution, the right to evaluate and reflect these values in the law is left to the people.  The Perry decision, if upheld, would turn the exception into the rule, and place these decisions solely in the province of the courts.

An independent judiciary that protects individual rights is, of course, critically important to our American system of government and part of the genius of the Framers.  But only to the extent it continues to recognize we have a written constitution that reflects the will, purposes, and understanding of the people, who are sovereign.  An independent judiciary, yes; but not an independent set of constitutional doctrines.  That would render the judiciary more than independent—it would render it supreme.

Tim Kowal is an attorney in Irvine, Calif., and Vice-President of the Orange County Chapter of the Federalist Society.