Figuring out Justice Kennedy

April 2, 2013

Supreme Court LGBTLast week’s oral arguments in the two same-sex marriage cases before the Supreme Court – U.S. v. Windsor and Hollingsworth v. Perry – produced no shortage of commentary.

Unfortunately, the number of possible directions that the Supreme Court could go makes it very difficult to predict the outcome of either case with any level of confidence.

One point on which most commentators seem to agree, however, is that Justice Anthony Kennedy will be instrumental to a majority decision in either case.

Unfortunately – again – Justice Kennedy didn’t make his views particularly clear during oral arguments; actually, he did make his views somewhat clear, but these views seemed to conflict with one another – that is, they are not readily reconcilable.

For example, during the Perry arguments, Kennedy stated that same-sex marriage is a recent phenomenon and that “[w]e have five years of information [about same-sex marriage] to weigh against 2,000 years of history or more [of traditional marriage.]”

In the same breath, Kennedy continued:

On the other hand, there is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

The significance here is that first, Kennedy seemed to be following Justice Scalia’s lead in questioning whether there was enough sociological evidence available to determine, as Scalia put it, whether a child being raised “in a single-sex family” ”is harmful to the child or not.”  Then, Kennedy changed positions, noting that, since California already allows same-sex couples to adopt, there are already 40,000 children with same-sex parents, and there is potential harm to be done to these children in denying their parents the right to marry.

Perhaps Justice Kennedy still needs to deliberate to come to a final decision – or perhaps this decision will prove too difficult for Kennedy to make.  What then?

As Justice Kennedy’s later comments reveal, he believes that the case has a “substantial question on…standing,” and further questions whether certiorari “was properly granted.”

In other words, if Kennedy can’t make a decision on the merits, he may decide to forgo the question entirely and simply decide the case on procedural grounds – that the Prop 8 proponents lacked standing to challenge the district court’s decision.

If that happens, Kennedy will likely find enough support to form a majority. 

How?  It’s highly improbable that Kennedy will cause a 4-4 split by voting alone to reject the case on jurisdictional grounds.  Instead, should a 4-4 split appear likely, Kennedy would probably join with whichever political faction – liberal or conservative – to which he was leaning closer.

The other political faction, predicting this outcome, will join with Kennedy to decide the case on jurisdictional grounds before he’s forced to pick sides on the merits.

This is all assuming that Kennedy refuses to reach the merits question, an assumption that is far from assured.

Anthony KennedyAlthough he certainly expressed serious procedural questions about the case during oral arguments, Kennedy was actively debating the merits of the case as well: Justice Kennedy state that whether same-sex marriage bans raise a “gender-based classification” is “a difficult question that [he’s] been trying to wrestle with it.”

If Kennedy does reach the merits question in Perry – which seemed increasing possible by the end of arguments – what do his comments suggest about how he will vote?

That’s the hard part: he gave clues to suggest that he would be open to a wide variety of options.

Nevertheless, I doubt that he would completely fall in line with Justice Scalia’s views and find that there is a sufficient state interest to prohibit same-sex marriage.

The closest he came to this position is finding that the decision should be left to the states so that the issue may “percolate” for a few more years.

Should he end up at this position, however, he’s unlikely to reach the merits of the case; rather, this view will manifest itself as a decision on procedural grounds.

As such, a decision by Kennedy on the merits will probably be one that affirms Prop 8’s invalidation – though it’s unlikely that the decision will be one that recognizes a constitutional right to marriage for same-sex couples, it’s not completely out the question.