It's not a good week for sleeping in Washington. By Saturday, there were already people tossing fitfully through the freezing night on the sidewalk outside the Supreme Court. They were there to see oral arguments Tuesday and Wednesday in the most consequential cases of the 2012-13 term, United States v. Windsor (the Defense of Marriage case) and Hollingsworth v. Perry (the Proposition 8 case). Either decision may set the tone of debate on gay rights for years to come. And the results are hard to predict.
I doubt that Justice Anthony Kennedy suffers from insomnia. But if he ever does, this would be the week. At the Justices' conference Friday, Kennedy may have to choose between his two great legal loves--the sovereignty of the states on the one hand and the dignity and rights of gay men and lesbians on the other.
Some years ago, Dahlia Lithwick and I christened Kennedy the "Sphinx of Sacramento" because, to outsiders, it seems hard to square his sympathy for gay rights with his views on abortion and federal power. His decisions have eloquently explained why an anti-gay initiative in Colorado, and a Texas law against gay and lesbian sex, violate his vision of constitutional equality. In the sodomy case, Lawrence v. Texas, he wrote that the Constitution's protections of liberty
counsel against attempts by the State, or a court, to define the meaning of [a same-sex] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When 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. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
At the same time, with his voice and his vote, he has defended the rights of states against civil-rights laws like the Religious Freedom Restoration Act and the Violence Against Women Act. He writes about the states with an almost religious awe: "Federalism was our Nation's own discovery," he wrote in a concurrence in U.S. Term Limits v. Thornton. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other."
He seeks to protect the states not only from the federal government, but from their own citizens seeking protection of their right to vote. During oral argument in a 2009 case, he asked from the bench whether the Voting Rights Act--the most successful civil rights statute ever passed--meant that "the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other."
Now the two dignities collide. In Windsor, which will be argued Wednesday, the Court must assess the power of Congress to discriminate against same-sex couples legally married under state law. Under DOMA, regardless of what their state says about their marriage, these couples cannot enjoy the federal tax breaks and public benefits of opposite-sex couples. This case should be an easy vote for Kennedy: who is the federal government to tell states that it will not respect their official acts?
But the complication is Perry, to be argued the day before. In Perry, plaintiffs assert a right to legal marriage even when state law (in this case an initiative measure passed on Election Day 2008) bars such marriages. The plaintiffs in this case assert a fundamental substantive due process right to marry, and further assert that sexual orientation should be, like sex, a subject of "heightened scrutiny," meaning that most laws discriminating against gays would be struck down under the Equal Protection Clause.