I’ve been a practicing lawyer for thirteen years this summer, with three years of law school before that. The overwhelming majority of that practice and study has been focused on the federal court system, which means, in the final analysis, the Supreme Court. For those sixteen years, one person more than any has dominated the legal landscape—Justice Anthony Kennedy. A common saying among constitutional lawyers has been “It’s Justice Kennedy’s world. We’re just allowed to play in it.” But since he announced his retirement from the highest court on June 27, 2018, it’s no longer his world.
So whose world is it now? What games are going to be played? And are we, as secularists and defenders of humanist values, going to be left standing on the sidelines?
In many ways, Kennedy’s appointment to the bench was a throwback to a different time in American politics; in others it was part of the start of the new era. He was appointed by President Ford to the U.S. Court of Appeals for the Ninth Circuit on the advice of then-Governor of California, Ronald Reagan. When President Reagan nominated him for the Supreme Court, Kennedy was approved by the Senate in 1988 on a vote of 97–0, missing only the votes of three Democrats who were absent, either campaigning or ill.
But it was the way in which Kennedy came to be Reagan’s final nominee that was the precursor of today’s brutal battles over seats on the Court. When Justice Lewis F. Powell Jr. retired in the summer of 1987, Reagan first put forward Robert Bork, a conservative notorious for his vociferous opposition to civil rights jurisprudence and to legal abortion. After a bruising hearing process, fought uncharacteristically in the public eye, the Senate rejected Bork’s nomination by a vote of 52 to 48. Reagan next turned to Judge Douglas Ginsburg, seen as a safe choice. Ginsburg, however, was exposed as having used marijuana both as a student and as an associate professor. He withdrew his name, paving the way to the appointment of Justice Kennedy.
Since Kennedy’s appointment, the approval process has not returned to its previous apolitical form. Each nominee (with the exception of Ruth Bader Ginsburg, approved 96–3 in 1993), has received significant numbers of negative votes in the Senate, from nine for Justices Souter and Breyer to over thirty for Justices Sotomayor and Kagan, with Justice Alito and Justice Gorsuch receiving forty-two and forty-five no votes respectively.
With the Court seen as balanced on a knife’s edge between liberals and conservatives, each appointment has become a battleground. Progressives have realized that legalized abortion, church-state separation, and minority rights have been protected (if at all) by the slimmest, 5–4 majority. Social conservatives have seen the same slender majority prolong abortion rights, uphold the Affordable Care Act, and advance the legal position of gays and lesbians. Each nominee, then, is seen as the potential savior of an entire philosophy. As the stakes have risen, so has the vitriol.
‘The Swing Vote’
If one phrase has been most overused in the analyses of Kennedy’s contribution to American jurisprudence it is this one—that he was the Court’s “swing vote.” And indeed, on many high profile cases it did indeed seem as if Justice Kennedy was the only member of the bench who mattered. In recent times, when the Center for Inquiry (CFI) submitted amicus briefs to the Supreme Court, we were confident Justices Ginsburg, Breyer, Sotomayor, and Kagan would rule with us. We were equally if not more confident that Justices Thomas, Scalia, Alito, and Roberts would rule against us. We did not waste any of our precious 9,000 words on seeking to shore up the support of the former group or to persuade the latter group of the error of their ways. Instead, for my entire career at CFI, we have targeted our briefs specifically at Justice Kennedy.
It’s important to remember, though, that while on these key issues—including LGBT rights, abortion, and church-state separation—Justice Kennedy was often the swing vote, this should not be used to paint him either as a political centrist or as a rudderless force, borne randomly by currents. Justice Kennedy, appointed by President Reagan, was a conservative throughout his legal career. He regularly ruled in favor of corporate interests. His position at the center of the Court’s divide on some issues was not a result of his alignment with the middle ground of American politics but instead an indicator of just how far the Supreme Court has been shifted politically since the days of the Warren Court, which gave us the expansion of civil rights and the protection of criminal defendants. Democratic Presidents have replaced liberal lions on the bench with mild-mannered apologetic centrists; Republican Presidents have replaced center-right conservative justices with fire-breathing originalists. As a result, it was the Court that skewed right, making Kennedy the centrist vote, rather than Kennedy skewing left.
Where I (and many others) will most remember Justice Kennedy in his role in the great sea change in American jurisprudence of the past twenty or so years isthe advancement of LGBT rights. It was Kennedy who wrote the Supreme Court’s opinion in four seminal cases that placed that issue front and center in American politics and law: Romer v. Evans, 517 U.S. 629 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); U.S. v. Windsor, 570 U.S. 774 (2013); and Obergefell v. Hodges, 135 S. Ct. 3584 (2015).
Colorado had, in 1992, amended its constitution to add a clause prohibiting anti-discrimination laws that protected based on sexual orientation. In Romer, the Supreme Court ruled by a vote of 6 to 3 that this violated the federal constitution. Finding the constitutional amendment so broad that it could only be based on animus toward homosexuals as a class, Kennedy wrote that it:
inflicts on [gays and lesbians] immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. 517 U.S. at 635
Citing an earlier case, he noted that “a bare … desire to harm a politically unpopular group cannot constitute a legitimate government interest” Id. at 634.
In Lawrence, Kennedy led the Court in a 6–3 decision striking a Texas law that criminalized same-sex sexual relations. Despite a case less than twenty years earlier, Bowers v. Hardwick, 478 U.S. 186 (1986), in which it was ruled that states could criminalize such actions, the Court overturned that recent decision, and across the country gays and lesbians could no longer be imprisoned for physically expressing their love. Kennedy based his opinion on the constitution’s guarantee of due process, which has been held to prevent the government impinging on citizens’ privacy. Citing Justice Stevens’s dissent in the Bowers case, Kennedy stated that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice” Lawrence, 539 U.S. at 577.
By the time the Supreme Court came to decide U.S. v. Windsor, the battleground had rapidly shifted from a question of the criminality of homosexuality to one of whether the state must allow and recognize same-sex marriages. Congress, in the Defense of Marriage Act signed by President Clinton in 1996, had restricted the federal benefits of marriage such as exemption from inheritance tax to opposite-sex married couples only and had granted states the right to refuse to recognize same-sex marriages performed in states that permitted them. Kennedy, in what was this time a 5–4 decision, struck the law as once again violating the Due Process Clause, writing that “no legitimate purpose overcomes the purpose to disparage and injure those who the State, by its marriage laws, sought to protect in personhood and dignity” 570 U.S. at 775. The law violated the Fifth Amendment because it sought “to displace this protection and treat those persons as living in marriages less respected than others” Id.
It was in Obergefell that the Supreme Court addressed the issue of marriage head on. States across the country had responded to state courts in Hawaii and Massachusetts finding a constitutional right to same-sex marriage in those states by passing constitutional amendments expressly forbidding such unions. Justice Kennedy, writing the opinion in a 5–4 decision, ruled that bans on same-sex marriage across the country were unconstitutional as violations of both due process and equal protection. Writing that “[t]he lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their stations in life,” 135 S. Ct. at 2594, Kennedy found no grounds to exclude homosexuals from such protection and social status. Basing his opinion on the liberty interest in personal choices regarding marriage, the fundamental importance of marriage to individuals, the protection that marriage offers to families and children, and the central nature of marriage to society, Kennedy stressed that the ability to marry a person of one’s choice was a fundamental right and that “fundamental rights may not be submitted to a vote; they depend on the outcomes of no elections” Id. at 2606.
In four opinions scripted by the devout Catholic Kennedy, then, spread over a mere nineteen years (the blink of an eye in Supreme Court jurisprudence), America moved from a nation where LGBT individuals could be expressly denied protection from discrimination under the law, and where they could be imprisoned for physical relations with one another, to a country where they can marry in all fifty states, accessing the same benefits as opposite-sex couples. The speed of this shift in the law cannot be overstated. And Justice Kennedy will always be remembered as being central to it.
But Kennedy’s contribution to the law, even to the law regarding LGBT rights, was far from universally positive. As noted above, he was a pro-corporate justice, often willing to place the rights of artificially created entities above those of natural people. Even on the issues closest to CFI’s core mission, Kennedy was often to be found on the wrong side.
In Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), Kennedy joined the majority opinion written by Justice Alito finding that corporations could exercise religious freedom rights under the Religious Freedom Restoration Act, even when that exercise would impose a burden on a third party, here the women employed by the store who would be denied access to zero–co-pay contraceptive care. The alleged religious rights of the corporation were seen as superior to the legislatively guaranteed rights of the women concerned. Later, in Trinity Lutheran v. Comer, 137 S. Ct. 2012 (2017), Kennedy again stood in the majority, protecting the interests of a religious group against constitutional concerns. The church in this case had applied for funding from a state program to resurface its children’s play area. Missouri’s constitution prohibited it from granting such funds to a religious group, but the Supreme Court ruled that religious groups could not be excluded from such programs despite the church’s refusal to state that the play area would not be used for religious purposes.
Finally, in one of the last cases he was involved in deciding, Justice Kennedy jeopardized his legacy as the protector of LGBT rights by writing the majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 136 S. Ct. 1719 (2018). In a case focusing on the clash between individual rights and the rights of groups to be protected from discrimination by civil rights laws, Kennedy sided with the individual baker. He ruled that comments made by participants in the case, including a commissioner stating that “[f]reedom of religion … has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust … . And to me it is one of the most despicable pieces of rhetoric … to use their religion to hurt others,” Id. at 1729, indicated the commission had exhibited bias against religion. Ignoring the historical accuracy of this comment, Kennedy found it “inappropriate” and that it “disparage[d the baker’s] religion” Id.
I therefore have no desire to provide a hagiography of Kennedy. While his opinions did much for the rights of America’s LGBT community, and his ruling in Lee v. Weisman, 505 U.S. 577 (1982) used the Establishment Clause broadly to protect students from compelled prayer, he has also ruled and joined opinions that have protected and advanced religious privilege at the expense of atheists, minority groups, and secular government as a whole. Justice Kennedy is, without a doubt, better for us than a replacement such as Judge Brett Kavanaugh will be. But with his decisions all over the map like this, what can be seen as Kennedy’s theoretical legacy?
How Does This Provide Us with a Consistent Ideology?
If we were to look for one word to link Kennedy’s rulings, from the ones advancing LGBT rights to the school prayer matter to supporting the owners of Hobby Lobby and the church looking to resurface its playground, it would be dignity. Kennedy has focused on the dignity of the individual and the right to “fair treatment” by the government; he has not made it his concern that individuals treat one another fairly. Where a person is denied protection or compelled into actions one sees as morally objectionable by the state because of his or her sexual orientation or religion, Justice Kennedy sees that person’s dignity as being infringed upon.
Therefore, a state separating out gays and lesbians as categorically unworthy of protection from discrimination (Romer), or the private sexual relationship between consenting adults resulting in imprisonment (Lawrence), or the federal government stating that some marriages (those of same-sex couples) would get fewer benefits than others (Windsor), or the government denying the societal status of “married” to same-sex couples and the families they head (Obergefell) were unconstitutional infringements on dignity. So similarly was the compulsion of atheists or minority religious students to be exposed to religious prayers at their graduation ceremony (Lee v. Weisman) an attack on their dignity by the power of the state. But in the same way, the baker in Masterpiece Cakeshop could not be compelled to serve cakes to gay couples without infringing on his personal dignity; nor could the corporation in Hobby Lobby be required to violate its religious principles by providing insurance for contraception. And the church in Trinity Lutheran could not be excluded from government funding programs without sending a message that religious organizations were less worthy of government support.
In Kennedy’s jurisprudence, the “dignity” of the gay couple refused by the baker, or of the women denied their right under the Affordable Care Act to contraception without co-pay, was not recognized. That was an affront to dignity caused not by the government but by the action of a third party. In Kennedy’s legal world, the court system should only be used when it is the government stripping an individual of his or her dignity. When it is the government merely enabling private citizens or corporations to do that to other citizens, the courts should stand down.
So where have Kennedy’s decisions left us? It appears unlikely to me, given the public support for same-sex marriage, that the rights granted to the LGBT community can be rolled back with a return to opposite-sex marriage only or to the criminalization of homosexuality. However, Kennedy’s opinions have always left room for interpretation. Because of his focus on governmental assaults on dignity, future cases seem likely to grant exemptions based on religion to individuals and corporations, allowing them to refuse service to LGBT individuals and couples. Even in his defense of the Establishment Clause in Lee v. Weisman, Kennedy did not provide a full-throated defense of the Lemon test, instead inventing his own coercion test—state involvement in religion is prohibited if it coerces support for or participation in religion. As Lemon is rolled back, this weaker coercion test can be applied to legitimize further and further inroads of religious activity into our schools and our public life.
But where Kennedy’s departure will be felt first and hardest appears likely to be Roe v. Wade. Though no personal supporter of abortion rights, Justice Kennedy largely upheld the precedent of Roe, the case that found a privacy right to abortion early in pregnancy. For my entire legal career, the repeal of Roe, allowing states to criminalize all abortions, has been the Holy Grail for the religious Right’s legal campaign. For that entire career, Justice Kennedy’s vote stood in their way. I have no hope that Brett Kavanaugh, if approved, will be as respectful of both precedent and the fundamental constitutional right of a woman to choose an abortion.