How you react to this will depend entirely on what issues drive you to the polls when you vote for more and better Democrats. You probably know I'm a single-issue voter, and I know you know what that issue is. So when I read an article in the New York Times that concludes like this,
These days, Professor Dorf said, there is more praise than criticism, and Justice Kennedy has joined a select group.
“What Earl Warren was to civil rights and what Ruth Bader Ginsburg was to women’s rights,” he said, “Kennedy is to gay rights.”
I think this belongs in a diary for LGBT Rights are Human Rights. And so, this is that diary.
I know. Kennedy is a REAL headscratcher, and yes, you can say he's selective about which rights he believes he is committed to protect, even if he does have a commitment to individual rights. On the other hand, anyone who can get the punditry on the right to declare, "Yes, we're bigots, and we're proud of it," as Rich Lowry did in his reaction to the Windsor decision in June,
The court stipulated that its decision prohibits a traditional definition of marriage only at the federal level and that the states are free to debate and decide the issue themselves. This is a false assurance, though. Once the high court has declared that the traditional definition is a product of irrational animus, over time it won’t be allowed to stand anywhere.
deserves some credit.
Yes, Kennedy wrote the majority opinion on the three biggest LGBT rights cases that came before the court after Bowers v Hardwick (1986):
Romer v. Evans, in 1996, struck down a Colorado constitutional amendment that had banned laws protecting gay men and lesbians. Lawrence v. Texas, in 2003, struck down laws making gay sex a crime. And in June, Justice Kennedy wrote the Windsor decision.
From left to right: Justices Kagan,
Kennedy, Breyer, Ginsburg, Sotomayor.
We know about Romer. As I wrote last November:
In Romer v. Evans (1996), Colorado argued that, since gays and lesbians were not a “suspect class,” the measure should stand; nevertheless, the Colorado Supreme Court upheld the lower courts stay 6-1, arguing that the measure violated the fundamental right of gays and lesbians to pursue their political interests in state and local legislatures. The United States Supreme Court upheld the Colorado Supreme Court by a 6-3 vote on the grounds that Colorado had not been able to show any rational basis for enacting the measure.
We know about Lawrence too. As
Chrislove wrote
in a diary about a particularly antediluvian member of the Virginia House of Delegates:
there's a little thing called Lawrence v. Texas. There is indeed a right to privacy, and that right to privacy indeed allows two consenting adult men to do whatever the hell they want to do in their bedroom.
The
Times wants us to know that all this might be just as surprising as it was when we learned that Earl Warren had tried to atone for what he did to the Japanese population in California by becoming (forgive the expression) a fierce advocate for the rights of African Americans in the United States. In fact, the article goes to the old-time California Republican trope:
Michael C. Dorf, a law professor at Cornell who served as a law clerk to Justice Kennedy, said the key to understanding his former boss was the culture of his home state.
“The way to think about his instincts is that he is fundamentally a California Republican,” Professor Dorf said. “It’s not surprising that a California Republican in 1987 would be expected to be at best an unreliable ally for gay rights groups.” [Incidentally, Ted Olson is from California too]
Indeed, just like Vaughan Walker, only Kennedy isn't gay, and Walker wasn't a judge when he argued against allowing the Gay Games to use the word "Olympic," Kennedy in 1980 as a federal judge agreed to let the Navy keep discharging lesbian and gay sailors, but wrote:
We recognize, as we must that there is substantial academic comment which argues that the choice to engage in homosexual action is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual’s right of privacy.
This was enough to ring alarm bells for at least one Republican, Gordon Humphries (NH), at the 1987 Senate hearing on Kennedy's nomination to the Supreme Court. Kennedy had also criticized the
Bowers v Hardwick decision the year before the hearing. And, despite the opposition of some gay groups, Kennedy was confirmed by a vote of 97-0.
The opinion in Windsor is just wonderful. Kennedy goes through the implications of the Justice department deciding not to defend DOMA (and gets in a few digs at BLAG), and concludes, as the appeals courts did in this case and in Gill, that DOMA prohibits states that allow same-sex marriages from following their own laws (hence Justice Ginsburg on "skim-milk marriage"). Thus:
The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.
What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.
Yes. Champion of LGBT rights. Thank you, Justice Kennedy.
UPDATE, 1:55 PM: I get your points. Yes, Kennedy showed who and what he was in Bush v Gore, Citizens United and the VRA decision. But in Romer, Lawrence and Windsor, he demonstrated his belief that LGBT rights are human rights.
But I have a counter example who identified as a Democrat, J. William Fulbright of Arkansas. We remember him today as the chairman of the Senate Foreign Relations committee who was out in front of most people in Washington in his opposition to the Vietnam War, and as the founder of the Fulbright scholarships for study and teaching abroad. We gladly overlook the fact that he was an ardent segregationist who voted against the CRA in 1964 and the VRA in 1965. Are we cutting him more slack than we're cutting Kennedy just because he's a Republican? Or is it the difference between the Senate and the Supreme Court?