Civil and Human Rights

Anthony Kennedy pivots left — for now

By Ariane de Vogue


Washington (CNN) — Anthony Kennedy secured his place in history Friday as the voice of the Supreme Court on modern America’s most divisive issues.


The 78-year-old justice appointed by Ronald Reagan moved the Supreme Court to the left in a dramatic conclusion to the term. He was in the majority in Thursday’s landmark ruling upholding Obamacare. And he led the Court to its groundbreaking ruling on Friday codifying a constitutional right to marriage for same-sex couples nationwide.


Kennedy has long been the critical center on an increasingly polarized Court. Though he’s wrapping up this term siding with the liberals, he has often played an equally pivotal role moving the Court to the right. Perhaps forgotten in the aftermath of Friday’s same-sex marriage ruling, Kennedy is also the justice who wrote the Court’s opinion in the Citizens United case, which upended campaign finance law.


During the next term, which begins in October, he could once again find himself shaping the destiny of the Roberts Court — justices may consider important cases on affirmative action and abortion.


Kennedy clearly understands the importance of his position: He wrote the same-sex marriage opinion with an eye toward history.


“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion sacrifice and family,” Kennedy wrote in the opinion joined by the liberals on the bench. “In forming a marital union, two people become something greater than they once were,” he said and added “marriage embodies a love that may endure even past death.”


“Their hope,” Kennedy wrote, “is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”


Justice Antonin Scalia counterpunched in a blistering dissent. He, too, played a familiar role upbraiding his colleagues for what he saw as a deeply misguided ruling that posed a “threat to American democracy.”


“The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” he wrote in the dissent.


But Scalia could only hurl rhetorical grenades. It was ultimately Kennedy’s day.


At oral arguments earlier this year, Kennedy expressed concern about changing the definition of marriage that had been around for a “millennia.” But Friday’s opinion showed no such concerns. He called marriage “one of civilization’s oldest institutions” and said that same-sex couples have the right to partake in it and not be “condemned to live in loneliness.”


Kennedy has long stressed the importance of two concepts: state’s rights and individual dignity. In this case where the two concepts were at loggerheads, Kennedy chose dignity.


He said the couples “ask for equal dignity in the eyes of the law” and ” the Constitution grants them that right.”


“Justice Kennedy did what he has done all along since joining the Court — stand up for the equal dignity of all Americans,” said former Acting Solicitor General Neal Katyal who was in the Court to hear the opinion announced.


One by one, Kennedy took down the arguments launched by opponents of gay marriage.


He rejected claims by the lower court that the issue should be decided by the public process holding that the “dynamic of our constitutional system is that individuals need not await the legislative action before asserting a fundamental right.”


He went out of his way not to condemn those who are opposed to same sex rights, calling their concerns based on “decent and honorable religious or philosophical premises” and he added “neither they nor their beliefs are disparaged here.”


And he rejected a rationale of the States to have marriage ban because it promoted “responsible procreation” between same sex couples. Kennedy said, ” An ability desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any state.”


Above all, he talked about the children, an issue that deeply concerned him when he wrote to strike a key provision of the Defense of Marriage Act in 2013.


“Without the recognition,” Kennedy wrote then. The children of same sex couples “suffer the stigma of knowing their families are somehow lesser.” He said same sex marriage bans “harm and humiliate the children of same sex couples.”


Katyal noted that today’s opinion is the fourth gay rights opinion penned by Kennedy.


“This is the same Justice who led the Court to strike down sodomy bans and laws that targeted gays and lesbians. He read the words above the Supreme Court building ‘Equal Justice Under Law,’ and applied them,” Katyal said.


Indeed lower courts across the country issued opinions in gay marriage cases citing words that Kennedy had penned in prior decisions.


Carrie Severino of the conservative Judicial Crisis Network who is also a former clerk of Justice Thomas, condemned the opinion which she said “robbed Americans of the opportunity to debate and decide this controversial issue in the public square and short circuited the democratic process.”


But she praised the sentiment behind the ruling saying it offers the opportunity for both sides “to united in a spirit of respect and dignity, rejecting intimidation against those with different beliefs.”


For Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center and a CNN contributor, Kennedy’s opinion brings the Justice full circle on the most important civil rights issues in decades. 


“With this ruling,” she said, ” Justice Kennedy cemented his legacy as the constitutional champion of gay rights at the Supreme Court.”

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