The origins of Friday's landmark Supreme Court decision legalizing same-sex marriage can be traced back almost 30 years to the Senate's confirmation process for justices.
Officials in President Ronald Reagan’s administration, reeling after two failed nominees to the court, were looking for a reliable conservative who could get Senate confirmation. They found him in U.S. Circuit Judge Anthony Kennedy.
But CQ's review of documents in the Reagan Library in California found the president's aides identified "disturbing aspects" in Kennedy's record. Foremost among them: Kennedy's actions in a gay rights case.
Kennedy on Friday cast the deciding vote and wrote the majority opinion in the same-sex marriage case, an opinion that vindicates both the fears of Reagan’s advisers about Kennedy and the liberal forces that opened the path to his nomination all those years ago.
Kennedy’s opinion ends with a description of same-sex couples seeking the profound union of marriage like love, fidelity, devotion, sacrifice and family.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Kennedy wrote. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
The Senate had rejected the conservative legal intellectual powerhouse, Circuit Judge Robert Bork, in October 1987. Two weeks later, Reagan’s next pick, solidly conservative Circuit Judge Douglas Ginsburg, withdrew from consideration after admitting he had smoked marijuana. Reagan then turned to Kennedy.
“One of the benefits—significant benefits—of defeating Robert Bork was the confirmation of Anthony Kennedy,” Nan Aron, the president of Alliance For Justice, who fought against Bork’s nomination, told CQ this week. “There’s no question that the Robert Bork defeat paved the way for the Supreme Court decision in the same-sex marriage case.”
The gay-rights movement has come a long way since Kennedy took the bench in 1988. He has been the major player on a Supreme Court that struck down Colorado’s discriminatory anti-homosexual law, decriminalized sodomy laws, struck down the Defense of Marriage Act and on Friday legalized same-sex marriage.
Kennedy was on Reagan’s short list of potential Supreme Court nominees for years. When Justice Lewis Powell retired in 1987, Democrats feared Reagan would replace the swing vote with a much more conservative justice, shifting the power of the court on civil rights and abortion.
Reagan wanted judges who reflected his views on judicial restraint—that legislatures enact laws and courts simply interpret them. Bork and Ginsburg both had that in spades, but both nominations failed. Kennedy, the third nominee, sat on the U.S Court of Appeals for the 9th Circuit.
“I guess by now it's no secret that Judge Kennedy has been on the very shortest of my short lists for some time now,” Reagan said. “Judge Kennedy is what many in recent weeks have referred to as a true conservative, one who believes that our constitutional system is one of enumerated powers, that it is we the people who have granted certain rights to the government, not the other way around."
But administration aides had doubts.
Kennedy's opinions generally reflected Reagan’s priority of judicial restraint, but his tenure on the liberal 9th Circuit, “probably the worst court of appeals in the country,” meant his “philosophical moorings remain an unknown quantity to some extent,” according to an assessment in the files of then White House Counsel Arthur Culvahouse at the Reagan Library.
“Although the large bulk of Kennedy’s work during his eleven years on the Ninth Circuit has been quite good, he has had few real gems and an occasional significant misstep,” reads the assessment.
The prime example was a 1980 case, Beller v. Middendorf, involving the Navy’s regulations prohibiting “homosexual conduct.” Kennedy, “although grudgingly upholding the regulations,” spoke favorably of constitutional “privacy rights” and formulated the rationale for validity much more narrowly than required, the assessment found.
Making the rationale narrow meant Kennedy gave “the most limited possible effect to the Supreme Court precedent that had upheld a state’s criminalization of homosexual conduct,” the assessment concluded.
He also “cited Roe v. Wade and other 'privacy right' cases very favorably and indicated fairly strongly that he would not uphold the validity of laws prohibiting homosexual conduct outside of the context of the military,” according to a 1986 assessment written by Justice Department lawyer Steve A. Matthews, who advised the White House on judgeships.
“This easy acceptance of privacy rights as something guaranteed by the Constitution is really very distressing,” Matthews wrote.
Aron said the core argument against Bork’s nomination was fear about his views on the right to privacy. Kennedy’s nomination did not draw as much opposition.
“The Senate was exhausted by the Bork confirmation and probably would have confirmed almost anyone for that seat,” Aron said. “The advantage Anthony Kennedy had was his record on a number of the issues that concerned people was very slim.”
The Senate had rejected Bork on a 42-58 vote in October 1987. It confirmed Kennedy on a 97-0 vote in February 1988.
The rest has become history in terms of gay rights cases at the Supreme Court. Kennedy wrote the majority opinion in Romer v. Evans, the 6-3 decision in 1996 that struck down a Colorado state constitutional amendment preventing protected status for LGBT people.
Romer was the first gay rights case since the Supreme Court upheld a state criminal sodomy law in 1986. It paved the way for other gay rights cases.
Kennedy wrote the majority opinion in Lawrence v. Texas, the 6-3 decision in 2003 that struck down Texas’ sodomy laws and decriminalized same-sex acts nationwide. He wrote the majority opinion in United States v. Windsor, the 5-4 decision in the 2013 case that struck down the Defense of Marriage Act defining marriage as between one man and one woman.
And on Thursday, he wrote the majority in the consolidated cases known as Obergefell v. Hodges.