Saturday, February 23, 2013

Anthony Kennedy and Proposition 8

Another growth opportunity

It was a coincidence. On Thursday I stumbled across a television program devoted to the life of Nathaniel S. Colley, Sr. The name was familiar to me, since I had heard it many times during my stint in state service. Colley was an attorney and civil rights leader in Sacramento, known to all of the state capital's elected officials and public servants. The biographical program on Sacramento's KVIE devoted a significant amount of time to Colley's vigorous endorsement of his McGeorge Law School colleague Anthony Kennedy for the U.S. Supreme Court.
“I am here because I know Judge Kennedy well. He is a man of great integrity who has a sincere devotion to the rule of law.” —Nathaniel Colley, December 1987
On Friday I picked up a copy of that morning's San Francisco Chronicle and a headline caught my eye:
Proposition 8 foes seek sweeping high-court ruling
The newspaper reported that attorneys for the plaintiffs would argue for a Supreme Court decision that would quash not only Proposition 8, but all similar bans against same-sex marriage. Such a ruling would have the effect of extending gay marriage throughout the United States, much as Lawrence v. Texas invalidated all of the state laws against so-called sodomy (however defined) and same-sex relations.
“The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
Lawrence v. Texas majority opinion
Justice Anthony Kennedy, June 2003
As a prominent black civil-rights activist, Nathaniel Colley's endorsement was a key factor in Anthony Kennedy's unanimous confirmation to the Supreme Court. Kennedy had been criticized for his membership in a whites-only country club, but Colley testified before the Senate Judiciary Committee that Kennedy had worked against the restriction on minority membership and resigned when it became clear that he would not succeed in ending it.
“Several witnesses attested to this evolution and to Judge Kennedy's open-mindedness, and to the fact that his development process is continuing. He is a grown man who will grow more, said Nathaniel Colley.”
Hearings before the Committee on the Judiciary
United State Senate
One Hundredth Congress
December 1987
Justice Kennedy is today the high court's most famous “swing vote.” With the notable exception of the Obamacare decision, where it was Chief Justice Roberts who cast the deciding vote, most observers agree that as Kennedy goes, so goes the Supreme Court. Naturally, therefore, all eyes are on the author of the Lawrence v. Texas decision. Will Justice Kennedy seize upon the Proposition 8 case as a new opportunity for growth, or will he continue his recent trend of aligning with the court's conservative bloc?

Many people are pessimistic. Kennedy has not inspired much confidence. My fingers, however, are figuratively crossed. Justice Scalia is an intemperate bully who has roundly abused his colleagues when they disagree with him. Kennedy has no reason to embrace Scalia's position to preserve a collegiality that is nonexistent. He can do as he pleases.

Will it please him to strike down Proposition 8? And, if he does, will he dispatch it with a stiletto or a saber? If Kennedy is thinking in terms of his judicial legacy, he must certainly be aware that cases decided on narrowly-construed grounds with limited impact do not make for key chapters in the history books. If he ducks the matter with a convenient technicality, he will have squandered a golden opportunity to leave his mark on the Golden State and beyond. The author of Lawrence could burnish his reputation as a milestone jurist with a simple and straightforward ruling in Hollingsworth that Proposition 8 and all measures like it are unconstitutional on equal-rights grounds.

In this context it might be appropriate to recall Anthony Kennedy's tenure at McGeorge School of Law. The longtime dean was a gay man, as was one of the dean's best friends, a closeted actor who was among the law school's most significant benefactors when he wasn't playing a lawyer on TV. Kennedy should keep these friends and colleagues in mind as he decides the Proposition 8 case. He could strike another blow for the advancement of civil rights. He could confirm Nathaniel Colley's judgment that he is a man who grows.

And he could give Scalia apoplexy.


Kit said...

I finally figured out why I've always been uncomfortable with gay marriage. I dislike the idea that something as sacred as marriage is going to be created by the government. As if government approval makes it real.

Of course, the same objection applies to straight marriage.

How's this for an idea? Get government out of marriage altogether.

Zeno said...

Bet you to it, Chris. Ages ago (back in 2005).

evlunclbud said...

I hope Kennedy does vote to reject Prop 8 just because marriage confers numerous benefits under law and because I'd like my nieces to live with parents who are "legitimately" married.

The Ridger, FCD said...

Marriage isn't "sacred" for a lot of people. It's a civil contract. In fact, churches can "marry" anybody they like; the legal standing is only conferred by the state. Which is why preachers always say "By the authority vested in me by the state of Wherever"...

But yes, sure. Take the legal bit away from the church for everybody.

Kathie said...

In Portugal (and some other European nations) a couple has to have a civil ceremony in order for a marriage to be legal. Church ceremonies are strictly for religion's sake, so couples who want one must have both.

Kathie said...

Re "Justice Scalia is an intemperate bully who has roundly abused his colleagues when they disagree with him": This is nothing compared to Nino's most recent pronouncement that he knows better than the Senators who voted 98-0 and the Representatives who voted nearly unanimously in 2006 to reauthorize the Voting Rights Act of 1965, which Bush 43then signed into law. Scalia is apparently no longer a strict constructionist.

Rich Zawadzki said...

"The present case does not involve...whether the government must give formal recognition to any relationship that homosexual persons seek to enter." - Justice Anthony Kennedy - Opinion - 02-102 (Lawrence v. Texas)

"One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical con- clusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homo- sexual marriage, but not strong enough to criminalize private homosexual actsóand may legislate accordingly. The Court today pretends that it possesses a similar free- dom of action, so that that we need not fear judicial impo- sition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Coupleís Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion, "after having laid waste the foundations of our rational-basis jurisprudence", the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it....This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so." - Antonin Scalia - Dissent - 02-102 (Lawrence v. Texas)

It would certainly appear that Justice Kennedy's assessment was either naive, mistaken or misleading; while Justice Scalia was correct, logical and eerily politically prophetic.

It's difficult to believe that the institution of marriage and 310,000,000 Americans both rest on the vote of one so naive, mistaken or misleading.