Justice Kennedy At Center Of Gay Rights Decisions For A Decade

Jun 26, 2013
Originally published on June 26, 2013 2:06 pm

Ten years ago, the U.S. Supreme Court struck down a Texas "Homosexual Conduct" law that criminalized some sexual acts.

Today, on the anniversary of that decision, the high court overturned a federal law that defined marriage as between a man and a woman.

At the center of those landmark decisions has been Supreme Court Justice Anthony Kennedy, who wrote the court's majority opinions in both.

Kennedy, who often serves as the swing vote on a divided court, has been a quiet if crucial figure in the stunning advance of civil rights for gay Americans over the past decade. A decade during which the high court has grown far more conservative.

Given Kennedy's pivotal role, we decided to take a look at how he framed his opinions back in 2003 in the Texas case, Lawrence v. Texas, and in the decision he delivered today in rejecting the federal Defense of Marriage Act as unconstitutional.

Both opinions are suffused with the words "liberty," "dignity," "inequality" and "humiliation."

Lawrence v. Texas

The case involved two gay men arrested in a private home and jailed after a complaint to police that they were engaging in sex. John Lawrence and Tyron Garner were eventually convicted of violating the "Homosexual Conduct" law, making them sex offenders in the eyes of many states, according to Lambda Legal, which helped the men bring the case to the Supreme Court.

The court by a 6-3 margin found the Texas law unconstitutional.

It marked a turnabout from a 1986 high court decision in Bowers v. Hardwick that found a Georgia anti-sodomy law constitutional.

Here are excerpts from Kennedy's majority opinion in Lawrence:

  • "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

  • "It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.

  • "The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this term we rejected various challenges to state laws requiring the registration of sex offenders. We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four states were he or she to be subject to their jurisdiction. This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.."

DOMA, United States v. Edith Schlain Windsor

The case involved New York resident Edith Windsor, who in 2007 was legally married to her longtime partner Thea Spyer. When Spyer died two years later, she left her estate to Windsor who attempted to claim the estate tax exemption for surviving spouses. The federal Defense of Marriage Act barred her from doing so, and she paid $363,000 more in federal estate taxes than a surviving heterosexual spouse would have owed. DOMA is a federal law enacted by Congress in 1996.

  • "In authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality."

  • "DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government."

  • "DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute."

  • "When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code."

  • "By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

  • "Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound."
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