A Surprising Friend of Gay Rights ; Few Would Have Foreseen a Reagan Nominee's Supreme Court Decisions

By Liptak, Adam | International Herald Tribune, September 3, 2013 | Go to article overview

A Surprising Friend of Gay Rights ; Few Would Have Foreseen a Reagan Nominee's Supreme Court Decisions


Liptak, Adam, International Herald Tribune


Justice Anthony M. Kennedy has emerged as the most important judicial champion of gay rights in American history, having written three landmark opinions on the subject.

The San Francisco Gay Men's Chorus sang "Give 'Em Hope" for a revered and in some ways surprising guest who shared a California stage with them last month: Justice Anthony M. Kennedy of the U.S. Supreme Court.

Justice Kennedy was in San Francisco for an American Bar Association meeting, but he was also there to be celebrated by the men on the risers behind him. In remarks from the stage, San Francisco's mayor, Edwin M. Lee, thanked the justice "for upholding the Constitution and justice for all" in his majority opinion in June in United States v. Windsor, a major gay rights victory.

"Freedom is always a work in progress," Justice Kennedy said in his own remarks, making clear that there was more work to be done.

Justice Kennedy has emerged as the most important judicial champion of gay rights in U.S. history, having written three landmark opinions on the subject, including this summer's Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation's civil rights law, and they have cemented his legacy as a hero to the gay rights movement.

"He is the towering giant in the jurisprudence of freedom and equality for gay people," said Evan Wolfson, the president of Freedom to Marry and one of the architects of the political and legal push for same-sex marriage.

That push has taken on momentum thanks to the Windsor decision, which gay rights groups are citing in challenges to state bans on same-sex marriage. On Thursday, the Internal Revenue Service said it would implement the Windsor ruling by recognizing the unions of all lawfully married same-sex couples, including those living in states that do not allow same-sex marriage.

On Saturday, Justice Ruth Bader Ginsburg, who joined Justice Kennedy's majority opinion in Windsor, became the first member of the court to officiate at a same-sex wedding.

The praise now being showered on Justice Kennedy by gay rights advocates -- and the deep disappointment of conservatives -- would have been hard to imagine when President Ronald Reagan nominated him to the Supreme Court in 1987. Gay rights groups were more than a little wary then.

On the federal appeals court in California, where Justice Kennedy had served for 13 years, he heard five cases concerning gay rights. He voted against the gay rights claim every time.

"I have to say that Kennedy seems rather obtuse on important gay issues and must be counted as a likely vote against us on most matters likely to come before the Supreme Court," Arthur S. Leonard, an authority on gay rights at New York Law School, wrote in 1987 in The New York Native, a newspaper that focused on gay issues.

The justice's trajectory since then has been a product of overlapping factors, associates and observers say. His Supreme Court jurisprudence is characterized by an expansive commitment to individual liberty. He believes that U.S. courts should consider international norms, and foreign courts have expanded gay rights. His politics, reflecting his background as a Sacramento, California, lawyer and lobbyist, tend toward fiscal conservatism and moderate social views. And he has long had gay friends.

Michael C. Dorf, a law professor at Cornell University in New York State who served as a law clerk to Justice Kennedy, said the key to understanding his former boss was the culture of his home state.

"The way to think about his instincts is that he is fundamentally a California Republican," Mr. Dorf said. "It's not surprising that a California Republican in 1987 would be expected to be at best an unreliable ally for gay rights groups."

In the 1980s, California Republicans, like most Americans, had deep reservations about the notion of gay equality. …

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