Kennedy Can, Can't He?

By Advocate Contributors

Originally published on Advocate.com September 09 2010 3:00 AM ET

 During his supreme court confirmation hearing in 1987, Anthony Kennedy, then a judge on the ninth circuit court of appeals, was taken to task by senators Joseph Biden and Edward Kennedy. Biden was bothered by a report indicating that the nominee had met with Jesse Helms and told the archconservative senator, “Indeed, I [know your antiabortion stance] and I admire it. I am a practicing Catholic.” Later on in the hearing the judge had to explain to Senator Kennedy that, yes, he had been a member of a group that excluded blacks and women but that he asked the Olympic Club to change its policy and quit when it didn’t.

This is the same Anthony Kennedy, confirmed by a 97–0 vote on February 3, 1988, who, following the retirement of Sandra Day O’Connor in 2006, became the Supreme Court’s swing vote. It’s the same Justice Kennedy who has authored two high court decisions affirming equal rights for gay people, including 1996’s Romer v. Evans, which struck down an antigay Colorado statute, and Lawrence v. Texas, which repealed the nation’s sodomy laws in 2003. With a federal judge in July declaring the Defense of Marriage Act unconstitutional, and another federal judge coming to the same conclusion about California’s Proposition 8 in August, there are two marriage-equality cases that could work their way toward the ideologically split Supreme Court. And many legal analysts say that, if they do, Kennedy will cast the deciding vote on the issue.

Gay rights supporters can be cautiously optimistic, says Erwin Chemerinsky, a law school professor at the University of California, Irvine. The 74-year-old justice is mindful of his legacy and “aware same-sex marriage is eventually going to happen,” Chemerinsky says. But a high court decision striking down same-sex marriage bans is far from a sure bet.

“Last year there were 12 cases where the Supreme Court split 5–4 along ideological lines,” Chemerinsky says. “Kennedy sided with the conservatives in nine cases and liberals with three. It’s a mistake to see him as other than conservative.”





 Born in Sacramento, educated at Stanford and Harvard universities, and married for 47 years, Kennedy has remained conservative regarding abortion rights, affirmative action, and the separation of church and state, while his positions on the death penalty and gay rights veer more to the left, Chemerinsky says.

But his stand on gay issues isn’t easy to categorize. Kennedy sided with the majority in Boy Scouts of America v. Dale, which in 2000 upheld the organization’s right to exclude gay scout leaders, and then did the same—with opposite effect—this year in Christian Legal Society v. Martinez, upholding a California law school’s policy that extracurricular groups welcome all students, including gay ones.

Even though Kennedy was once a lobbyist for the Catholic Church, Jenny Pizer, senior counsel for Lambda Legal, the organization that argued Dale, Evans, and Lawrence, says the justice isn’t held hostage by the doctrines of his religion.



“On gay rights, there are conservatives, including people of faith, who have come to see gay people as people like anyone else,” she says. “Justice Kennedy seems to demonstrate an open mind, but it’s also a matter of helping him see this is the right time for this kind of decision.”