Stephen Gottlieb: The Gay Marriage Cases
Sunday night, my wife and I attended a Persian Nowruz or New Year’s festival, with many friends. We celebrated the best and happiest of the traditions they had left behind, along with other Americans who had come to take part. While celebrating the rebirth of Spring, we were also celebrating freedom with friends who had become refugees, whose humanity and efforts to use their skills to help others had become unwelcome to Iranian authorities.
Last night we celebrated freedom with another group of friends, this time in a Passover Seder at our home. We were all Americans by birth but we remembered the importance of freedom to the ancient Israelites and to the many different groups who have struggled for freedom in our own lifetimes.
On both evenings some of the conversation turned to what was going to happen in the cases dealing with the rights of gays and lesbians in front of the U.S. Supreme Court this week.
My response was to take our companions back to 1938 when the U.S. Supreme Court decided that Missouri could not satisfy its duty to African-Americans by sending them elsewhere to pursue their legal education, regardless of the quality of the education they would get. The Court had set itself on a doctrinal course that logically led to the end of segregation in Brown v. Board, but it would take another sixteen years, a World War and some crucial changes in membership on the Court before it could arrive at that conclusion. It took an act of great courage to decide Brown and we are indebted to Chief Justice Earl Warren for enabling the birth of modern civil rights law.
Now the question is how much courage Justice Anthony Kennedy has? It was Kennedy who wrote the opinion of the Court in overturning a constitutional amendment adopted by the voters of Colorado which prohibited any law which protected gays or lesbians from discrimination. And it was Justice Anthony Kennedy who held that Texas could not make a crime out of the private sexual conduct of consenting adults. But will he have the courage to decide that California cannot bar gay marriage, or that the U.S. cannot refuse to recognize marriages performed in states where it is legal?
Kennedy has rarely split from his four conservative brethren when they are united, except in free speech cases; he has been a consistent champion of the speech rights of Americans. With that exception, however, he has rarely separated himself from the conservative wing of the Court.
When Justice O’Connor was on the Court, he had her support for the results in both of the seminal gay rights cases on which he wrote the opinion, even though, in Lawrence v. Texas, she reached the same result for different reasons. Unfortunately, Justice O’Connor has retired. If Kennedy joins the liberal justices, he will almost certainly be the only conservative on the Court to do so. It’s hardly clear that he will have the courage.
So in this week of Passover, Easter and celebrations of freedom and of Spring, it is appropriate to pray for some Kennedy courage – may he stick by his libertarian principles when it will take some guts.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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