Justice Anthony Kennedy faces a simple choice with profound consequences: When the Supreme Court considers the issue of marriage equality for gays and lesbians, does he want to write the next Plessy v. Ferguson or the next Brown v. Board of Education?
As Justice Kennedy approaches the issue, he likely knows it is just a matter of time before gays and lesbians are accorded marriage equality in this country. Since the year 2000, eleven countries have begun allowing same-sex couples to marry: The Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, and Denmark. Last year, three more state legislatures, in Maine, Maryland, and Washington, adopted legislation allowing gays and lesbians to marry. Recent opinion polls show that half of Americans now favor allowing gay marriage; a 2011 poll found that 70% of Americans between the ages 18 and 34 support gay marriage.
In light of this, Justice Kennedy has to know that a Supreme Court opinion rejecting marriage equality will be considered in hindsight to be as misguided as the infamous Bowers v. Hardwick ruling, which held that states could criminalize private, adult, consensual homosexual activity. Justice Kennedy wrote the opinion in Lawrence v. Texas, overruling Bowers. In fact, Lawrence v. Texas was one of only two Supreme Court decisions in history advancing rights for gays and lesbians–the other was Romer v. Evans in 1996–and Justice Kennedy authored the majority opinions in both.
The Supreme Court has granted review in two cases concerning marriage equality to be decided in 2013. In United States v. Windsor, the Court will decide the constitutionality of Section 3 of the Defense of Marriage Act, which states that marriage must be between a man and a woman for the purposes of federal law. In Hollingsworth v. Perry, the Court will decide the constitutionality of California’s Proposition 8, which amended the California Constitution to provide that marriage has to be between a man and a woman.” Proposition 8 overturned a California Supreme Court decision interpreting the California Constitution to include a right to marriage equality for gays and lesbians. In each case, there are jurisdictional questions: whether House Republicans can defend the Defense of Marriage Act in light of the Obama administration’s refusal to do so, and whether supporters of an initiative may defend it on appeal when the Governor and Attorney General refuse to do so.
In Perry, the Supreme Court has the opportunity to decide the constitutionality of same-sex marriage. In doing so, Justice Kennedy and the Court can choose between two possible approaches in invalidating Proposition 8.
Reflection on the current "ephemeral moment" in marriage equality movement and analysis of the minimalist and federalism based litigation strategies.
Evaluates the two approaches that Justice Kennedy could take when deciding Hollingsworth v. Perry.
Reflections on the LGBT movement since the author was at NYU in RLSC and impact of Perry moving forward.
Perry is an opportunity for the court to correct constitutional doctrine by focusing on substantive due process and clarify its marriage jurisprudence.