Everyone went into the Supreme Court hearing on marriage equality yesterday thinking that the decision was slam dunk. No one left thinking the same. The conservative justices were predictably opposed to the concept (with a special nod to Samuel Alito for suggesting it would lead to incest), and the liberal justices were predictably supportive. Which leaves the swing vote, Anthony Kennedy.
If people were expecting Kennedy to tip his hand during the oral arguments, they were sorely disappointed. If anything, Kennedy’s questioning of lawyers on both sides raised the specter that the final decision, while still positive, may not be quite as sweeping as everyone hoped.
Kennedy made a number of comments during the hearing that are fully in line with his three landmark, maybe even legendary, decisions affirming LGBT equality. He chastised attorney John Bursch, who was arguing on behalf of the states that want their marriage bans upheld, for suggesting that the state didn’t have any interest in same-sex couples’ argument that marriage was about dignifying love, not procreation.
“I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage,” Kennedy said. “It’s dignity-bestowing, and these parties say they want to have that same ennoblement.”
But at the same time, Kennedy clearly seemed bothered that things have been moving too fast for his comfort. The idea of a historical decision making marriage equality a right seemed a bit much. Changing the definition of marriage is a momentous step, and it’s not clear if Kennedy is ready to take it.
“I don’t even know how to count the decimals when we talk about millennia,” Kennedy said in court. “This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better.’ ”
Now, it’s the justices role to play devil’s advocate in testing legal arguments, and Kennedy may well have been doing that. But it also appears that something deeper was at play in Kennedy’s remarks. As he put it, the “social science” on marriage equality is “too new.”
The irony is that Kennedy set himself up for this very situation two years ago when he wrote the majority decision striking down the Defense of Marriage Act. His colleague Antonin Scalia called Kennedy on this very issue with a kind of clarity that Kennedy himself did not employ.
Kennedy is now faced with a dilemma. His heart seems to tell him that anything that diminishes the dignity of gay and lesbian families is an affront. (It’s worth noting that Kennedy’s mentor was a gay man.)
At the same time, Kennedy is a conservative, a Catholic conservative at that, appointed by former President Reagan. His legal inclination is to rein the courts in, not let them loose. He’s a big proponent of states’ rights, and a ruling nationalizing marriage equality would be a thumb in the eye to a lot of states.
So where does that leave his vote on marriage? It’s hard to say. The idea of Kennedy voting against marriage equality seems impossible to square with his past decisions. But some sort of less-than-sweeping ruling doesn’t seem out of the question. There are two cases before the Court. The second involves the question of whether states that ban marriage equality must recognize same-sex marriages performed elsewhere.
This could provide Kennedy with an out, if he gets cold feet. He could essentially say that gay marriage is okay everywhere; it just has to be performed in states that allow it. It’s a kind of split-the-baby compromise that could garner the votes of even a few conservative justices, including Chief Justice Roberts.
Of course, all that ruling would do is create more chaos, delay the inevitable and deny a lot of couples the right to get married where they live. That’s hardly the most dignifying decision, to use one of Kennedy’s favorite words.
We’ll know soon enough what Kennedy is thinking. But the arguments in the Court were a reminder that even the best allies may have their limits. There’s no question that the country has moved quickly to accept marriage equality.
The question now is whether Kennedy kept pace.