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.
If the Court accepts those arguments, then Kennedy's beloved states may be required by the Constitution to begin recognizing gay marriage even if both the voters and the legislators disagree.
Marriage is, by tradition, an area where the states have reigned supreme. In an amicus brief in the Prop 8 case filed for 20 states, the state of Indiana argues that states deserve "deference" in all matters except "core traditional marriage rights"--that is, the basic rights of opposite sex couples. In words Kennedy himself might have written, the brief argues that "[t]he tradition of state control over marriage arises from the specific historical origins of the Union and more generally the philosophical underpinnings of Western society. States are the original and most fundamental sovereigns of our Nation."
I have little doubt that his heart is telling Kennedy to strike down DOMA and leave Prop 8 alone--to say, in effect, that marriage policy belongs to the states, and whether a state recognizes gay marriage or not, federal legislators and judges should keep hands off.
But it's possible that that opinion, as the Justices say, "won't write"--meaning that there's no way for Kennedy to embrace state authority over marriage without saying something bad about gays--and that he has always been unwilling to do.
If a same-sex marriage involves free persons who "retain their dignity" and have formed an enduring "personal bond," what then is there about this personal bond that allows the states to refuse to call it "marriage"? The Court has protected marriages between members of different racial groups, between deadbeat dads and their new girlfriends, and between inmates doing life and prospective spouses who can never hope to do more than visit them. If these people are entitled to marriage, what is it about same-sex couples that makes them less than equal?
In other words, what's wrong with them?
Kennedy's jurisprudence, and I think his heart, say what many of us say: nothing is wrong with them. They are just like everybody else and deserve equal respect.
There are escape routes for Kennedy in the Prop 8 case. That liberal lion, Judge Stephen Reinhardt, wrote a lower-court opinion so narrow that Kennedy could concur on grounds that would limit its effect to California. In that state, Reinhardt wrote, the state first offered marriage to same-sex couples and then suddenly jerked it away. That, Reinhardt's opinion argued, is worse than never offering it at all. (The opinion borrowed freely from caselaw written by Kennedy himself.) In addition, Reinhardt noted, California's civil union statute gave same-sex couples all the rights of married couples--but just denied them the label "married." "By withdrawing the availability of the recognized designation of 'marriage,'" he wrote, "Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class."
The plaintiffs in the Prop 8 case have scorned arguing Reinhardt's reasoning. They want the Court to hold same-sex marriage a fundamental right, meaning no state could abridge it. This may be a bridge too far, and some of the sleeplessness this week arises from proponents' fear that by trying for it they may lose the game.
But even if the Court rules against the broader argument, I am optimistic that Prop 8 will not survive. I suspect that no majority opinion speaking ill of gays and lesbians will get Anthony Kennedy's vote. Kennedy is a conservative and a Catholic, but we have seen his compassion on display in previous gay-rights cases. Unlike Antonin Scalia, he seems untouched by hatred for lesbians and gays. Much as I disagree with many of his opinions, I see no reason to doubt his fundamental decency. His values may seem idiosyncratic, but they are firm.
A partial victory on Prop 8 may disappoint many people, but it would be far, far better than a complete defeat. In this case, decency leads us toward the dawn.