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Thursday, August 05, 2010

Excellent Prediction of WWKD (What Would Anthony Kennedy Do?)

Wall St Journal:

Scalia Was Right
Why the same-sex marriage ruling will stand.


For the first time, a federal judge has held that the Constitution mandates the legal redefinition of marriage. The California Supreme Court had reached a similar conclusion in 2008, and voters responded by amending the state constitution via a ballot measure known as Proposition 8. If yesterday's ruling is eventually upheld by the U.S. Supreme Court, it would mandate same-sex marriage nationwide. The Los Angeles Times describes the ruling in Perry v. Schwarzenegger:

"California 'has no interest in differentiating between same-sex and opposite-sex unions,' U.S. District Chief Judge Vaughn R. Walker said in his 136-page ruling. . . .
Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.
"Walker stayed his ruling at least until Friday, when he will hold another hearing," the Times reports. Presumably it will be appealed to the Ninth U.S. Circuit Court of Appeals. That circuit is notoriously liberal, so one would expect the ruling would be likelier than not to be upheld, whereupon it would go to the Supreme Court.

If the Ninth Circuit upholds Walker's decision, the Supreme Court would almost certainly agree to hear an appeal, which would present the practical equivalent of a circuit split. Although this is, so far as we know, a novel question for U.S. appellate courts, such a ruling by the Ninth Circuit would establish same-sex marriage as a federal constitutional right within that court's jurisdiction (nine Western states plus a couple of insular territories), at a time when it is illegal in all but a handful of other states.

So how would the Supreme Court rule? In the sense that it is a speculative question, nobody really knows. The New York Times has an amusingly uninformative piece, the gist of which is that hardly anyone is willing to venture a prediction:

Professor [Doug] NeJaime suggested the case might turn on the court's traditional swing vote, Anthony M. Kennedy, who has shaped decisions that struck down laws that discriminated against gay men and lesbians. The rational basis test used by Judge Walker is in line with the standard used by Justice Kennedy in cases like Lawrence v. Texas, which struck down a state sodomy law. By structuring an opinion that allows the Court to use the lower level of scrutiny, Judge Walker "is speaking to Justice Kennedy," he said.
Professor Jesse H. Choper, a professor of law at the University of California, Berkeley, said that it was too soon to tell which way Justice Kennedy might come down on the issue of same-sex marriage. "I have no way of predicting how he'd come down on this, and I don't think he does, either, at this point."
So it all comes down to that wild and crazy Justice Kennedy, and by gosh, you just never know what he's going to do!

We disagree, and we are prepared to offer up a prediction: When the Supreme Court takes up Perry v. Schwarzenegger--perhaps under the name Brown v. Perry or Whitman v. Perry--the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.

This accepts the conventional assumption that the court's "liberal" and "conservative" wings will split predictably, 4-4. Yet while Kennedy cannot be pigeonholed in terms of "ideology," on this specific topic, he has been consistent in taking a very broad view of the rights of homosexuals. He not only voted with the majority but wrote the majority opinions in two crucial cases: Romer v. Evans (1996) and Lawrence v. Texas (2003).

Romer struck down an amendment to the Colorado Constitution that nullified state or local ordinances barring discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." This provision, adopted by ballot initiative, violated the Equal Protection Clause of the 14th Amendment, Justice Kennedy wrote for the court:

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.
In Lawrence, the court overturned a 1986 ruling and held that state laws criminalizing consensual homosexual sodomy violated the constitutional right of privacy:

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.
In his Perry ruling, Judge Walker cited both Romer and Lawrence, arguing that their logic leads inexorably to a finding that same-sex marriage is a constitutional right. One jurist who agrees is Justice Antonin Scalia, who sharply dissented in Lawrence (citations omitted):

Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.
Those who see Justice Kennedy's position in Perry as difficult to predict in effect entertain "the belief that principle and logic have nothing to do" with his decisions on the court. Is this belief justified?

In arguing that it is, one might point to Boy Scouts of America v. Dale , a 2000 case in which Kennedy joined Chief Justice William Rehnquist's 5-4 opinion striking down New Jersey's effort, pursuant to state antidiscrimination laws, to force the Boy Scouts to admit gays. But this was not in reality a decision against gay rights; it was a decision in favor of the scouts' rights to free expression and association. Kennedy's vote in this case showed him to be more principled than the court's liberals in his adherence to the First Amendment.

In Perry, however, the defendants are unlikely to be able to counter the plaintiffs' claims by arguing that forcing states to recognize same-sex marriage violates anyone's individual rights. Their appeals are to tradition, morality and the collective right of the people to self-government--worthy arguments, we would say, but ones Justice Kennedy has already rejected in Romer and Lawrence.

As to why we think Kennedy will write the decision, that's easy: The writing of opinions is assigned by the most senior justice in the majority, and Kennedy is now the court's most senior member outside the conservative bloc.

Some proponents of same-sex marriage have argued that bringing this litigation now was a foolish move. "The Supreme Court, they reasoned in early 2009, was not ready to declare a right to SSM," as Dale Capenter puts it at "Premature litigation, they feared, would do more harm than good. . . . Well, nothing has changed." Purely as a bit of strategic analysis, this argument seems wrong to us.

Arguably "nothing has changed" since 2009 in terms of either side's prospects for success before the Supreme Court. But with four justices now in their 70s, including Kennedy, the makeup of the court is likely to change considerably over the next decade.

The direction of that change depends on who is president and on the partisan split in the Senate, which means that it is anyone's guess. Plausible scenarios for just three years from now range from President Obama and a modest Democratic majority to a conservative Republican president and a large GOP majority.

The former outcome would produce a court more amenable to same-sex marriage, but as a hedge against the latter--which, by the way, now seems likelier than it did in 2009--it was smart for the plaintiffs to move ahead when they did, so that they are almost assured of reaching the Supreme Court while Justice Kennedy is still there.