Most observers believe that any decision on gay marriage by the current court would probably come down to the opinion of Justice Anthony Kennedy. But that is no cause for pessimism. The gay equality movement has had few judicial friends more staunch than Kennedy, the author of the court’s two leading decisions honoring that cause.
In addition to writing Lawrence in 2003, Kennedy wrote a significant opinion for the court in Romer v. Evans, seven years earlier. That decision invalidated an amendment to Colorado’s constitution that prohibited treating homosexuality as a class deserving protection from discrimination. Kennedy pointedly began Romer by citing Justice John Marshall Harlan’s much-celebrated dissent in Plessy v. Ferguson, the 1896 case that validated “separate but equal.” With that exquisite citation, Kennedy demonstrated that he understood the movement for gay equality to be a legitimate heir of the movement for racial equality. His concern about society’s treatment of gays extends at least as far back as his days as a circuit court judge. In fact, an opinion involving gay rights that he wrote for the Court of Appeals for the 9th Circuit in 1980 caused some Reagan administration officials to find the prospect of placing him on the Supreme Court deeply disconcerting.
Kennedy has now served on the court for nearly 25 years. In the event that Obama should not win reelection next year, it seems probable that a Republican president would attempt to replace Kennedy, who turns 77 in 2013, with a justice less receptive to gay equality.
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