I celebrate with gay marriage proponents everywhere in hearing that District Court Judge Vaughn Walker has overturned Prop 8. But this isn’t the end of the journey along the court system. The decision is going to be appealed, where it will land in the 9th Circuit Court of Appeals, and eventually the Supreme Court. Anthony Kennedy currently holds the distinction as the the swing vote in a polarized Supreme Court that regularly votes 5-4 on highly-partisan cases (the fact that it does so often makes these cases highly-partisan itself). So the pertinent question (one that pundits will be asking for months until the Supreme Court releases its decision) is whether Anthony Kennedy will sustain the District Court ruling, overturn Prop 8, and bring gay couples into full equality in the institution of marriage.
I believe that Kennedy will unquestionably vote to sustain Walker’s ruling. All one has to do to come to this conclusion is to read Justice Kennedy’s opinion in Lawrence v. Texas. Justice Kennedy strongly believes in the rights of everyone to enter into relationships that do not harm others or interests the state protects. In fact, he justifies this belief in the same ways other justices have historically reasoned on the right of privacy: that the right to have sex, to love, to date, and to marry, is per the 14th amendment ‘implicit in the concept of ordered liberty’. It is the basis by which society and all other rights are built. What follows is a short paper I wrote on the subject of Kennedy’s opinion in Lawrence. If after reading this and his opinion you are still skeptical Kennedy will side on the favor of gay marriage, email me.
In Lawrence v. Texas, Justice Kennedy made the right argument in favor of overturning Texas’ ban on homosexual sodomy. The strongest argument in favor of overturning this ban is the first argument that Justice Kennedy makes – that this ban violates fundamental human liberties of the most private human conduct, in violation of the Due Process Clause in the 14th Amendment. The dissenting opinion in this case, written by Justices Scalia, Rehnquist, and Thomas, tries to argue that ‘homosexual sodomy’ is not a fundamental right under the Due Process Clause. This is a mockery of Kennedy’s argument, and is not the fundamental right that he argues for.
The freedom to conduct in private consensual sex, ‘absent injury to a person or abuse of an institution the law protects’, is but one small part of the liberty Kennedy argues for. The freedom to have sex, and more broadly the freedom to enter into the relationships that accompany it, are fundamental to the functioning of the entire human species. If we are not secure in our ability to enter into a romantic relationship absent the government stepping in to play matchmaker, then we cannot be secure in any freedom. Even when the most primal right of freedom to procreate is not at stake (given that this concerns homosexual sodomy), the ability to freely enter into these relationships cannot be abrogated. The right question is not: do we have a right to enter into consensual, loving relationships without government interference? The right question is: how can the government have a right to infringe upon our personal relationships?
I do not believe that Justice Kennedy’s later arguments invalidating the precedent or tradition against homosexual sodomy are as strong as the previous argument. Kennedy argued that laws banning this conduct were relatively new, and that similar laws are not endemic to Western Civilization or Judeo-Christian moral standards. If you take the first argument as a given, then Justice Kennedy should not need to invalidate precedent or tradition. If sexual self-determination is a fundamental liberty, then modern laws or tradition are simply wrong.
The dissent’s strongest arguments lie in blurring the difference between homosexual sodomy and other widely-punished offenses such as bigamy, adult incest, prostitution, and same-sex marriage (which at the time of writing had not yet been legal in any state). They argue that if laws banning homosexual sodomy are overturned, then no laws banning moral offenses can stand. This is a false dichotomy, because there is a distinct difference between homosexual sodomy and gay marriage on one hand and polygamy and incest on the other. Justice Kennedy provided the standard in his brief – keeping such laws if they dealt with practices that caused injury to a person or abuse of a legally protected institution. Incest and polygamy are argued to cause psychological harm – the first to children and the second to the multiple wives. Gay sodomy and marriage is consensual and causes no harm.
I personally come out in favor of the Majority in Lawrence. In the course of restating one of Justice Kennedy’s arguments, I stated my own opinion: if we are not secure in our ability to choose sexual partners or engage in serious relationships, then we cannot be secure in any right. If homosexuals are not free to engage in sexual practices, then neither are heterosexuals.