In his Monday column, former New York Times executive editor Bill Keller hoped gay marriage would be vindicated by the Supreme Court, "A Brief for Justice Kennedy."
Keller has previously argued for gay marriage while hinting that those who disagree are motivated sheerly by bigotry. On Monday he gushed that two lawyers fighting for gay marriage can "make history" at the Supreme Court and snobbishly lauded the "more enlightened states" that had already made it legal.
Thrilling as it was to hear a sitting president endorse marriage rights for gay and lesbian Americans, there is one man whose opinion on the subject matters more than President Obama’s. Justice Anthony Kennedy is the likely deciding vote when this issue reaches the Supreme Court. More than anyone, he has the power to transform what is now a license bestowed by the more enlightened states into an all-American civil right.
Now two lawsuits are inching toward the Supreme Court. The richer opportunity comes from California, where Proposition 8, banning gay marriage, has already been overturned by a three-judge panel of the United States Court of Appeals for the Ninth Circuit.
The Prop 8 ruling was a great victory for proponents of marriage equality, but it was a narrow victory, confined to California’s circumstances. (The state legalized gay marriage for a time, then took away that right.) That leaves the justices with some options:
They can make history. They could rule that the Constitution affords gay couples the same marriage rights as straight couples. Or they could take a big step in that direction by ruling that while states do not have to issue licenses to gay couples, they must recognize marriages performed in more progressive states.
They can thwart history. They could rule that states are free to recognize only heterosexual marriages. This would be a disheartening setback, though I imagine it would energize the movement for marriage rights.
Keller noted approvingly that the "cosmopolitan" Kennedy is more attuned to the idea of looking to foreign court decisions and not solely the U.S. Constitution.
Moreover, Justice Kennedy, who is widely traveled and cosmopolitan, is more open than the most conservative justices to arguments borrowed from foreign and international courts. He took note of European precedents in the ruling against sodomy laws. So the Kennedy brief on marriage could draw on the experiences of the 10 countries, from Canada to Spain to South Africa, that have legalized gay marriage, and the others (Israel and Mexico for instance) that recognize gay marriages performed in other jurisdictions. It’s hardly a worldwide consensus, but the trend is in the right direction, and, really, why should the United States lag behind Argentina?
Talking to Yale law professor William Eskridge, who supports gay marriage but thinks a Supreme Court ruling would have an unintended effect like Roe v. Wade, hardening opposition:
My head tells me that Eskridge is probably right: Kennedy will be inclined to stop short of full equality now. But my heart will be rooting for Boies and Olson. If that lesbian or gay couple in Mississippi or West Virginia have the courage to ask for a marriage license, I’d like to think the country has the courage to back them up.