Tuesday, June 25, 2013

Predicting Kennedy

Conventional wisdom holds Justice Kennedy will break the tie in SCOTUS' soon to be decided same sex marriage case.  Some time ago I predicted Kennedy would not vote for a full right to same sex marriage, but rather demand some compromise splitting the baby. 

When he authored Lawrence v. Texas, a ground breaking case holding same or opposite sex couples have the right to engage in the voluntary non-procreative sex act of their choice, the only guidance Kennedy gave for future same sex marriage cases was an assurance that Lawrence didn't "slip" (as in slippery slope, or "the logic of which demands") into a right to same sex marriage.  Distinguishing Lawrence from a potential parade of horribles, Kennedy explicitly said, "[t]he present case ... does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

This was in response to Justice Scalia's fiery dissent which held the logic of Lawrence irresistibly demanded a right to same sex marriage. 

Kennedy may still vote for a constitutional right to SSM. But I doubt he'll offer Lawrence as authoritative precedent. (As in, "no Nino, you were really right after all; this case really DOES lead to same sex marriage.") There's something about the human ego, ESPECIALLY among intellectuals, that, except in rare mea culpa circumstances, seeks not to contradict itself. 

Indeed, Justice O'Connor's concurring opinion in Lawrence illustrates this dynamic. O'Connor obviously sympathized with the defendants. Yet, she had a problem. Just 17 years earlier in Bowers v. Hardwick, she voted with the majority which upheld a state sodomy statute that prohibited voluntary acts of oral and anal sex between same or opposite sex couples (even though Justice Byron White's opinion framed the issue in terms of "a fundamental right to engage in homosexual sodomy").

So instead of simply joining the majority which held same AND opposite sex couples, BOTH have a right to engage in voluntary non-coital sex acts, she held NEITHER do. Hence, the Bowers case which she joined was justly decided. Yet, the Texas Statute on review was unconstitutional because it permitted opposite sex sodomy while banning same sex sodomy. Hence it violated the equal protection of the laws guaranteed by the 14th Amendment to the Constitution. 

Justice O'Connor felt she needed to hold this way -- to thread the needle -- so her past and present decisions would not contradict one another.

The Supreme Court often overrules itself. Individual Justices rarely overrule themselves.

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