Justice Kennedy's 'Gay Agenda': Romer, Lawrence, and the Struggle for Marriage Equality

30 Pages Posted: 10 Mar 2013

See all articles by Lawrence C. Levine

Lawrence C. Levine

University of the Pacific - McGeorge School of Law; New York Law School

Date Written: April 6, 2012


Justice Kennedy, in his near quarter century on the United States Supreme Court, authored the two most important decisions positively affecting the lives of gays and lesbians in the United States: Romer v. Evans and Lawrence v. Texas. These two decisions were monumental in bringing gays and lesbians in, the United States into the realm of constitutional protection. Rightfully, Justice Kennedy has been lauded for his thoughtful and sensitive gay-friendly jurisprudence.

Justice Kennedy's key gay-rights decisions have been subjected to substantial criticism even by those favoring gay and lesbian rights, however. There are ambiguities in both Romer and Lawrence that have permitted lower courts to interpret these decisions extremely narrowly. Further, because of the uncertainties raised in those opinions, the Supreme Court will be free to interpret both quite restrictively in subsequent cases while claiming adherence to stare decisis. Only time will tell how effective Justice Kennedy's opinions will be in protecting the constitutional rights of gays and lesbians.

The uncertainty about the reach and meaning of both Romer and Lawrence has become particularly problematic in the continuing debate about the constitutionality of the heterosexual marriage monopoly that currently exists in most states. Courts have interpreted Romer and Lawrence in dramatically different ways. Until the Supreme Court more clearly defines the reach of those decisions, this disagreement will continue.

In this Article, I praise Justice Kennedy's sensitivity and vision when it comes to gay and lesbian rights as no Supreme Court Justice has done more to provide constitutional protection to this community. That said, I also identify some of the problems created by the ambiguous nature of his opinions.

The United States Supreme Court will likely weigh in soon on the ongoing debate about theā€¢ constitutionality of banning gays and lesbians from marriage. Many believe that Justice Kennedy will be the swing vote on this important issue. For these reasons, I endeavor, with no small amount of trepidation, to prognosticate on Justice Kennedy's likely approach to the issue based on his existing decisions.

The Ninth Circuit's 2012 opinion in Perry v. Brown presents the Supreme Court the opportunity to jump into the marriage-equality debate in this current term. In Perry, the Ninth Circuit invalidated on federal constitutional grounds California's Proposition 8, which had overturned California law permitting gays and lesbians equal access to marriage. As explained below, the Supreme Court review of Perry enables the Court to enter into the marriage-equality discussion without having to proclaim a far-reaching constitutional right to marriage for gays and lesbians while giving greater guidance on the reach of Romer. Nevertheless, the Supreme Court will ultimately have to confront the more difficult issue of whether the Constitution requires all states to permit gays and lesbians equal access to the institution of marriage.

Part II of this Article examines Romer, while Part III analyzes Lawrence, noting each opinion's positive attributes along with its shortcomings. Part IV looks at the recent Perry decision, as this case striking down California's Proposition 8 may be the vehicle enabling the Court to enter the current marriage-equality debate. Part V looks at how the Romer and Lawrence decisions may influence the legal struggle for marriage equality. Finally, in Part VI, I turn to what those decisions suggest regarding Justice Kennedy's likely perspective on the marriage-equality issue, concluding that neither Romer nor Lawrence foretell how Justice Kennedy will rule on a case presenting the issue. Justice Kennedy's decisions conferring constitutional protection upon gays and lesbians, along with the potential that his due process liberty concept encompasses broadly defined relational choice, makes his support for marriage equality possible and maybe even probable. Time will tell.

Keywords: gay and lesbian, civil rights, due process, equal protection, Justice Kennedy, The Supreme Court, Lawrence v. Texas, Romer v. Evans, marriage, marriage equality, same-sex marriage

Suggested Citation

Levine, Lawrence C., Justice Kennedy's 'Gay Agenda': Romer, Lawrence, and the Struggle for Marriage Equality (April 6, 2012). McGeorge Law Review, Vol. 44, 2013; Pacific McGeorge School of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2230626

Lawrence C. Levine (Contact Author)

University of the Pacific - McGeorge School of Law

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New York Law School ( email )

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