Lawyers have learned that the way to frame a Supreme Court argument intended to persuade Justice Anthony M. Kennedy is to tell love stories—the kind of stories that begin with powerful barriers that threaten to thwart the lovers’ desires and dreams, but always end with “living happily ever after.” In Justice Kennedy’s world, lovers—especially gay and lesbian lovers—are just a Supreme Court decision away from a perfect life.
In his June 26th decision to strike down any barriers that would keep same sex couples from “marrying”, Justice Kennedy wrote that there is “no legitimate purpose” for federal laws keeping these couples from marrying. Going even further, Justice Kennedy stigmatizes anyone who might disagree with such marriages by writing that the federal statute that had been enacted to bar the federal government from recognizing same sex marriages was intended to “disparage and to injure.”
Putting himself in the role of protecting the same sex protagonists from the barriers imposed by those he views as bigots who want to deny happiness to those who only want to love and be loved, Justice Kennedy appears to view himself as the conquering hero of his own life story. He has said so himself. In an article for the New Republic, “Supreme Arrogance: The Arrogance of Anthony Kennedy” (June 16, 2007), Jeffrey Rosen recalls that before handing down his decision in Planned Parenthood v. Casey, the ruling that affirmed and strengthened the right to an abortion, Kennedy told a reporter, “Sometimes you don’t know if you’re Caesar, about to cross the Rubicon, or Captain Queeg, cutting your own tow line.” He then channeled Hamlet, excusing himself by saying that he needed to “brood.”
A Dewy-Eyed, Utopian Moralist
Justice Kennedy has often described himself as having been shaped by novels and plays—many of them love stories. Rosen’s New Republic article suggests that Kennedy, “apparently uncomfortable with real conflicts among real people,” took refuge from an early age in the morality tales he found in fiction. In an interview with a reporter, Kennedy once said: “I think fiction is very important because it gets us into the mind of a person. Hamlet is a tremendous piece of literature. You know Hamlet better than you know most real people. Do you know the reason? Because you know what he’s thinking. And this teaches you that every human has an integrity and an autonomy and a spirituality of his own, of her own, and great literature can teach you that.”
Born in 1936, and raised in Sacramento, California during the postwar economic boom. Justice Anthony Kennedy enjoyed a golden childhood in the golden state. According to Rosen, Kennedy once told an audience at the Academy of Achievement, “It was a wonderful town and a wonderful time.” Recalling the movie, It’s a Wonderful Life with Jimmy Stewart, Kennedy implies that such a world can be recaptured—if only the right laws are in place. Rosen’s judgment is perhaps surprising, but makes sense of Kennedy’s body of judicial judgments: “Kennedy is not a systematic thinker but a utopian moralist; and, like many sweeping visionaries, he is unwilling to accept the radical implications of his own abstractions.”
When writing his decisions, the Roman Catholic Kennedy approaches them more as morality plays, with characters who are either good or evil. The evil ones are those who impose their morality on others they wish to control. In 1996, in Romer v. Evans, Kennedy wrote the majority opinion striking down a Colorado constitutional amendment—passed by the people in that state—that would have outlawed giving gay, lesbian, bisexual and transgendered individuals status as a protected class. Kennedy wrote that the law “identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” For Kennedy, Coloradans who supported the amendment depriving gay men and lesbian women of special protections were motivated by “animosity” to the GLBT community.
A few years later, an even more passionate plea for the rights of same sex couples, was contained in Justice Kennedy’s decision in 2003 in Lawrence v Texas—a case challenging the constitutionality of anti-sodomy laws. Continuing his commitment to finding love in all the wrong places, Justice Kennedy’s majority opinion in Lawrence held that “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” What Justice Kennedy did not know then was that the love-story narrative surrounding the plaintiffs in Lawrence was always a lie. Flagrant Conduct: The Story of Lawrence v. Texas, a book published in March by Dale Carpenter, a professor at the University of Minnesota Law School, revealed that Lawrence was never a case about what Justice Kennedy would have defined as a loving relationship.
Catholic World Report readers may recall my story, “House of Lies” (March 26, 2013), which describes the sordid story of the plaintiffs, John Lawrence and Tyron Garner. Both men had been charged with engaging in deviant sexual activity. Realizing how difficult it would be to find a case to challenge the Texas sodomy statute, national gay-rights advocacy groups effectively repackaged the story of Lawrence and Garner’s drunken one-night-stand into a love story—with heroic lovers struggling to solidify their bond in a society that despised them.
It was a brilliant strategy, specially designed for Justice Kennedy, the lover of love stories. As Dahlia Lithwick wrote in a New Yorker review of Carpenter’s book, “Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.” And until Carpenter’s book was released in 2012, no one ever knew—including Justice Kennedy.
In his June 26th ruling on, Justice Kennedy turned his protective powers to the children of same sex couples. Implying that these children are all cowering in the shadows of a society that wants to deny them the “integrity and closeness” all families deserve, Justice Kennedy wrote of the “humiliation” such families suffer because of the laws keeping their parents from marrying. But, life is not fiction. For example, Robert Oscar Lopez, a man who was raised from the age of three by a lesbian couple, rejects the claim that the problems that the children of same sex couples face have their origins in a society that rejects them. Rather, he wrote in a Public Discourse essay, “Growing Up With Two Moms: The Untold Children’s View” (August 6, 2012), that “growing up with gay parents was very difficult—and not because of prejudice from neighbors … I grew up in a house so unusual that I was destined to exist as a social outcast.” None of this, Lopez explained, has to do with discrimination because same sex couples were unable to legally marry.
Additional research by Mark Regnerus, Professor of Sociology at the University of Texas, reveals that children raised in households where at least one parent had had a same sex relationship reported higher rates of unhappiness and relationship instability. Research by sociologists Judith Stacey and Timothy Bilblarz found that children raised in same sex households were significantly more “sexually adventurous” than children raised in heterosexual households. None of these studies conclude that it is societal reactions that caused the challenges that these children face. It is not likely that a marriage license for their two moms or dads will make a difference in preventing their unhappiness or their own willingness to engage in what Stacey and Bilblarz celebrate as “sexually adventurous behavior.”
Catholic Teaching and Justice Kennedy’s Decisions
Earlier this year, the Huffington Post published a study by William Blake on the impact of the justices’ religious views on Supreme Court decisions. According to Blake, Justice Kennedy is “most likely to support the position of the Catholic Church.” The reason that Blake believes this is because Justice Kennedy is most likely to use the Catholic concept of “human dignity” to influence his decisions. Considering Justice Kennedy’s decision to expand a woman’s right to abortion in Planned Parenthood v Casey in 1992, most faithful Catholics might disagree with Blake on his assertions that the Justice is influenced by Catholic teachings. While Justice Kennedy continues to claim to be a devout Catholic, as described in a profile in The New Yorker in 2005, his rulings on abortion, sodomy and same sex marriage hardly appear to be influenced by Catholic teachings on morality, the sacredness of marriage, and the life of the unborn.
Of course, it is possible that Justice Kennedy does not believe that the Catholic concept of “human dignity” applies to the unborn. Rather, he is concerned about the dignity of the woman who desires an abortion, or the same sex couple who desire to be “married.”
Still, faithful Catholics continue to be discouraged when considering what might have been when looking at the composition of the court. With a Catholic majority on the court, they reasonably expected that at least a few of the rulings might favor the sacredness of life from conception to natural death, or traditional marriage. Back in 1987, when the Senate Judiciary Committee began hearings on the nomination of then-Judge Anthony M. Kennedy to the Supreme Court, there were indeed questions about his beliefs regarding abortion. Many of the pro-life Senators who were involved in the confirmation hearings for Justice Kennedy actually believed he would look favorably on overturning the Court’s decision in Roe v Wade.
To understand why so many Senators thought Justice Kennedy might rule to protect the life of the unborn, it is helpful to read a 1987 article published in the New York Times entitled “The Questions Begin: Who is Anthony Kennedy?” (December 15, 1987). According to the Times article, one of the senators asked Kennedy during the Senate confirmation hearings about a newspaper column written by Cal Thomas which reported that Republican Senator Jesse Helms of North Carolina told him that he and then-Judge Kennedy met in a private room at the White House on November 12, 1987. “I think you know where I stand on abortion,” Mr. Helms reportedly said to Kennedy. According to Senator Helms, Kennedy smiled and answered, “Indeed I do and I admire it. I am a practicing Catholic.” Columnist Thomas reported that Mr. Helms interpreted the response to mean that Kennedy would be opposed to abortion.
Kennedy’s response to the senator who asked him about his conversation with Senator Helms was to say that “The conversation that you referred to was wide ranging of a personal nature in which the Senator asked me about my family and my character and I told him, as I have told others of you that I admire anyone with strong moral beliefs.” And then he said: “Now it would be highly improper for a judge to allow his or her own personal or religious views to enter into a decision respecting a constitutional matter.”
It is clear to most faithful Catholics that Justice Kennedy has indeed kept his word about not allowing religious views to enter into his decisions about protecting the unborn, or the sacredness of marriage as the Church teaches. Former Kennedy law clerk, Michael Dorf, has called his former employer, “the first gay justice,” because of Kennedy’s zeal to bring what he perceives as “dignity” to gay and lesbian individuals. Perhaps it is true that Justice Kennedy takes pride in providing what he sees as equal rights and human dignity to same sex couples and their children. But Justice Kennedy should know that overturning centuries of settled law and cultural norms, as he did in Lawrence, and creating a pathway to “marriage” for same sex couples, cannot provide the perfect lives he wants to write for them.