What will Anthony Kennedy do on gay marriage?

Those hoping that Kennedy would forever be a strong advocate after Romer would soon be disappointed. In 2000, Kennedy voted with the majority in Boy Scouts of America v. Dale, allowing the Boy Scouts to bar gay troop leaders, based on the group’s rights of free expression and free association. Trying to square this no-yes-no-yes pattern with Kennedy’s blockbuster decision in Lawrence, Ward concludes that what really changed over Kennedy’s tenure at the court was an uptick in the number of gay rights cases at the court, a growing acceptance of gays and lesbians in the political arena, and the presence of new justices, like Breyer and Ginsburg, who were open to gay rights.

Thus, when faced in 2004 with the now-urgent question of what Kennedy might do on gay marriage, Ward was far less certain than all the advocates on both who say they’re sure they’ll lose. He concludes that Kennedy’s “opinions in Romer and Lawrence can be considered precedent to expand gay rights, including gay marriage. At the same time, they could constrain his choices and he could be unwilling to extend his position to more controversial gay rights claims.” And that’s pretty much the uncertain Kennedy landscape we’ve all come to recognize. Ward is certainly right that “future gay rights claims will be treated seriously” by Kennedy, but he’d also ask you to remember that the justice will be equally attuned to the opinion polls, the mood of the country, and the strong pushes and pulls from his colleagues. In other words, anyone seeking deeper hints or tips on what Kennedy might do in Perry is probably just going to have to wait and see. Kennedy may not even know yet himself.