Granted, he’s speaking in broad philosophical terms here. And granted, the logic of democratic compromise necessarily doesn’t apply if the Equal Protection Clause has been violated. But when the guy whom everyone thinks will be the swing vote on the Court’s big gay-marriage case says something like this — in the heart of the state where Prop 8 was passed, no less — it’s news.
At the very least, if he is inclined to strike down Prop 8, this is an odd message about judicial power to be pushing right now:
U.S. Supreme Court Justice Anthony Kennedy said Wednesday that congressional lawmakers need to maintain the nation’s balance of power by being able to compromise, expressing concerns that the high court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration…
“I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said. “And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.”…
The associate justice appointed by President Ronald Reagan has often been the swing vote on split decisions. He said he’s concerned that too many decisions of social and political importance are being shifted to the high court, particularly in an era of “litigation explosion.”
He’s talking there about congressional gridlock, not state governments diverging in their approach to a contentious social issue, but the point about unelected judges deciding democratic disputes applies to both circumstances. Kennedy, in fact, has waxed rhapsodic about state sovereignty and the virtues of federalism in opinions before, most notably the Lopez case from 1995 which struck down a law passed by Congress on grounds that it violated the Commerce Clause(!). Per what he said yesterday in Sacramento, maybe he’s inclined to let the states work through gay marriage on their own. Especially since, per this new bipartisan survey from Freedom to Marry, popular sentiment on the subject is in flux:
Exit polls and other surveys from last year’s election suggest that resistance to same-sex marriage is shrinking and mainly concentrated among certain segments of the population: older people, white evangelical Christians and non-college-educated whites…
The disparity was even greater among religious groups, broken down along racial lines. White evangelical Christians opposed same-sex marriage by nearly 3 to 1. But every non-evangelical group — other white Protestants, white Catholics, Hispanic Catholics, African American non-evangelicals and Jewish voters — expressed support for such unions by double-digit margins.
Meanwhile, African American voters who described themselves as evangelical or born again were narrowly divided, with 45 percent saying their state should recognize same-sex marriage and 47 percent saying it should not.
So maybe there’s a solution here that’ll satisfy both Kennedy’s federalist/democratic impulses and his sympathy for gay rights: Give the public some time to continue wrestling with this issue, since federalism and democracy increasingly are leading to more rights for gays. (Even in California: The same public that enacted Prop 8 now says, to the tune of 61 percent, that gays should be able to marry.) The big caveat on federalism, though, is that the Lopez case dealt with the federal government imposing its authority on the states while gay marriage deals with the state government imposing its authority on the individual, which implicates the Bill of Rights. In fact, just a year after he sided with the states in Lopez, Kennedy wrote the majority opinion in Romer v. Evans striking down a Colorado law that singled out gays to deny them protected-class status. And if, as he said yesterday, he’s worried about the U.S. being an example to the rest of the world, he may well decide that a big Court ruling for gay rights is more important than letting democracy play itself out for another decade or two. But still — any tea leaf coming from him that points to majority rule instead of judicial fiat is an interesting one, especially at this particular moment.
Exit question: How confident are we that, even if Kennedy votes to uphold Prop 8, another conservative justice won’t side with the liberals to strike it down? Kennedy was supposed to be the fifth vote for ObamaCare last year, remember. In the end, it was Roberts. This time too?