Once again the constitutional status of LGBT Americans rests in the hands of a 78-year-old moderate Republican, who returned from Harvard Law School to his hometown of Sacramento and remained there for 26 years—first as a lawyer and later as a judge—until Ronald Reagan made him a justice of the Supreme Court. After two and a half hours of oral arguments that were at turns inspired, clever and by the end tedious, the question of whether same-sex couples have a constitutional right to marry in every state will be decided by Justice Anthony Kennedy, just as he was the deciding vote in striking down a federal “Defense of Marriage Act” and state laws that criminalized gay sex.
Justice Kennedy knows this. The other eight justices know it. The 40-plus lawyers for the parties know it. The lawyers who wrote the record-high number of amicus briefs know it. It was the reality at the beginning of the argument and it remained the reality at the end. So what can we learn from what happened at the argument?
Reading Justice Kennedy. To those who are discomfited by having what is in effect a one-justice Court on this issue, it may come as some consolation that Justice Kennedy is anything but flip on the questions presented. In the first few minutes of the argument, he told counsel for plaintiffs Mary Bonauto that “the word that keeps coming back to me is millennia.” With marriage having been limited for centuries to different-sex couples, he said, “it is difficult for the Court to say we know better.” And let’s face it—what he was really saying was, it is difficult for me to say I know better.
But resolving these seemingly intractable conflicts is what Supreme Court justices do, whether they want to or not. It seems pretty clear that none of the justices are thrilled that this question is before them this year, but now they (and really he) will have no choice but to reason a path through to a conclusion. By the end of the argument, Justice Kennedy was in full to-be-or-not-to-be mode, suggesting that, despite those millennia, society has “learned a lot” about the lives of LGBT Americans in recent years, including that many same-sex couples share the goals of establishing committed relationships and raising children.
And dignity! The two most recent of Justice Kennedy’s LGBT decisions have leaned heavily on a concept of equal dignity and the need for the Court to recognize the harm generated by laws that demean or disrespect gay people. So, no surprise: both Bonauto and Solicitor General Donald Verrilli, who argued as the voice of the Obama administration for the right to marry, made frequent use of terms like “dignity, “second class status,” and “stigma.”
What was genuinely surprising, and a gutsy gamble, came from the lawyer defending Michigan’s ban of same-sex marriage. John Bursch argued that the state has no interest in using marriage as a means to bestow dignity on adult partners. Same-sex partners, he said, are entitled to the same dignity as different-sex couples, a principle that he proclaimed Michigan endorses. The state’s legitimate reason to exclude them from marriage, he said, was solely to create a structure that is most effectively designed to maximize the likelihood that biological parents will marry.