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.
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
"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. …