Kennedy and Scalia Likely at Odds on Homosexual Rights

Well, this is pretty much exactly what I argued on Friday.

At the Los Angeles Times, "Supreme Court showdown expected over gay rights decisions." Justices Anthony Kennedy and Antonin Scalia, both 76 years-old, will be battling it out:

The two have much in common. Born in 1936, they graduated from high school in the early 1950s and excelled at Harvard Law School, where they were a year apart. They were Republicans who rose through the legal ranks. When appointed to the court, both bought homes in McLean, Va.

They agree on much. Both voted to strike down President Obama's healthcare law as an overreach by the government. Scalia joined Kennedy's majority opinion in the Citizens United case that freed corporate and union spending on political ads.

But Kennedy, the libertarian, and Scalia, the social conservative, clash fiercely over the court's role in deciding moral controversies.

The two split 20 years ago when the court's conservative bloc was poised to overturn Roe vs. Wade, the ruling that legalized abortion. Though personally opposed to abortion, Kennedy switched sides in spring 1992 and cast a crucial vote to uphold a woman's right to choose. "Our obligation is to define the liberty of all, not to mandate our own moral code," Kennedy wrote.

In the past, Scalia has accused Kennedy of having "signed on to the so-called homosexual agenda." Scalia is likely to have the votes of fellow conservatives Clarence Thomas, Samuel A. Alito Jr. and probably Chief Justice John G. Roberts Jr. to uphold state and federal laws that exclude gays from marriage.

But Kennedy has the much stronger hand. He ranks third in seniority after the chief justice and Scalia, and he has four liberal justices on his left. Because the senior member of the majority decides who writes the opinion, Kennedy could decide who writes the opinions if he votes with the liberals. And he could take the assignment for himself.

His past writings provide clues as to how he might see the issue.

In a New York case, the justices will decide whether the federal government can deny legally married same-sex couples the benefits that go with marriage. These include filing joint tax returns and receiving survivors benefits from Social Security.

Gay rights advocates challenged this exclusion in the Defense of Marriage Act as discriminatory, and they have won rulings from judges in New England, New York and Northern California.

Kennedy is likely to agree with the challengers, and he explained why in 1996, the same year Congress passed the marriage act. The court then faced a Colorado voter measure that repealed gay rights ordinances in several cities. Kennedy spoke for the court in striking it down. He said that the measure was "born of animosity" toward gays, he said, and that the Constitution "prohibits laws singling out a certain class of citizens for disfavored legal status or general hardships."

If Kennedy and the court strike down the federal benefits provision of the marriage act, it would be a major victory for gay rights, but it would not affect the 41 states where same-sex marriage is forbidden.

The California case on Proposition 8 could be far more significant because it involves the right to marry. Ted Olson and David Boies, the attorneys who led the challenge, plan to argue broadly that marriage is a fundamental right and that excluding gay couples from marriage denies them the equal protection of the law.

A Kennedy-Scalia clash from a decade ago gives a preview. When two gay men challenged a Texas anti-sodomy law, Kennedy wrote a glowing opinion taking their side. "They are entitled to respect for their private lives," he said, and "the state cannot demean" them by treating them as second-class citizens.

In a moment of high drama, Kennedy gave a professorial reading of his opinion on the last day of the court term in 2003. When he finished, Scalia's voice cut through the room as he delivered an angry dissent.

Kennedy's opinion left the laws against same-sex marriage "on pretty shaky grounds," Scalia said at the time. "If moral disapprobation of homosexual conduct is 'no legitimate state interest' … what justification could there possibly be for denying the benefits of marriage to homosexual couples?"

That's the question now before the court in the California case.

More at the New York Times, "Sidebar: Court Enters Same-Sex Fray With Uncharacteristic Speed" (via Memeorandum).