Anthony Kennedy on Civil Rights
Supreme Court Justice (nominated by Pres. Reagan 1988)
Right to same-sex marriage is a fundamental right
On June 26, 2015, the news broke. "A historic day here at the Supreme Court ," came the report from CNN, from just outside the court. "You can probably hear gay rights advocates to my right cheering this decision, authored by Justice Kennedy, saying
that the right to marriage is a fundamental right and gays and lesbians cannot be excluded from that right. In this broad ruling by Justice Kennedy, he says 'the right to marry is a fundamental right,' and same-sex couples may not be deprived of
liberty, or that right to marriage. So again, ruling today is that same-sex marriage is a nationwide constitutional right. This is one of the greatest civil rights issues of our time and this is what gay rights advocates have been hoping for decades."
The decision was 5-4. Justice Kennedy, who was sworn in during the final year of Ronald Reagan's presidency, was not only the swing vote but also the author of the majority opinion in the landmark decision.
Source: Promise Me, Dad,by Joe Biden, p.210-1
, Nov 14, 2017
No longer deny gays the profound liberty of marriage
In a long-sought victory for the gay rights movement, the Supreme Court ruled by a 5-to-4 vote that the Constitution guarantees a right to same-sex marriage. "No longer may this liberty be denied," Justice Anthony Kennedy wrote for the majority
in the historic decision. "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were."
The decision, which was the culmination of decades of litigation and activism, set off jubilation and tearful embraces across the country, the first same-sex marriages in several states, and signs of resistance--or at least stalling--in others.
It came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of the unions.
The court's four more liberal justices joined Justice Kennedy's majority opinion.
Source: N.Y. Times on 2015 SCOTUS decision on Obergefell v. Hodges
, Jun 27, 2015
Living Constitution: apply 14th amendment to gay marriage
Justice Kennedy was the author of all three of the Supreme Court's previous gay rights landmarks. The latest decision came exactly two years after his majority opinion in United States v. Windsor, which struck down a federal law denying benefits to
married same-sex couples, and exactly 12 years after his majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.
In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with
societal changes. "The nature of injustice is that we may not always see it in our own times," he wrote in Obergefell v. Hodges. "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent
of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."
Source: N.Y. Times on 2015 SCOTUS decision on Obergefell v. Hodges
, Jun 27, 2015
Concurred on allowing federal ObamaCare subsidies
The Supreme Court upheld one of the main tenets of ObamaCare, ruling 6-3 that millions of Americans are entitled to keep the tax subsidies that help them afford insurance. Chief Justice John Roberts wrote the court's majority opinion and was joined by
Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
The ruling, the 2nd case in which the justices have decided in favor of the Affordable Care Act, preserves benefits for an estimated 6.4 million Americans &
deals a crippling blow to the law's Republican opponents, who have attempted to undermine it since its passage in 2010.
The law's architects claimed that subsidies were always meant to be distributed through both federal and state channels, and that
the goal of the law was to cover all Americans. The Supreme Court agreed. Roberts said [forbidding federal subsidies] "would destabilize the individual insurance market, and likely create the very 'death spirals' that Congress designed the Act to avoid."
Source: US News&World Report on 2015 SCOTUS decision King v. Burwell
, Jun 25, 2015
Overturn DOMA; equal protection for same-sex couples
In United States v. Windsor, the Supreme Court ruled that the Defense of Marriage Act, which defined the term "marriage" under federal law as a "legal union between one man and one woman" deprived same-sex couples who are legally married under state laws
of their Fifth Amendment rights to equal protection under federal law.
Situation: Edith Windsor and Thea Spyer were married in Toronto, Canada in 2007. Their marriage was recognized by New York state, where they resided. Upon Spyer's death in 2009,
Windsor was forced to pay $363,000 in federal taxes, because their marriage was not recognized by federal law.
OnTheIssues explanation: This ruling led to a series of state legalization of same-sex marriage, as well as federal equality of
same-sex rights (but not federal equality of marriage).
Opinions:Majority: Kennedy, Ginsburg, Breyer, Sotomayor, & Kagan; dissent: Roberts, Alito, Thomas & Scalia, on mixed grounds of federalism & traditionalism.
Source: CNN.com on 2012 SCOTUS docket #12-307
, Jun 26, 2013
Right to define one's own concept of existence, even if gay
In 2003, the Supreme Court heard the case of two homosexual men who had been arrested and convicted under a Texas law that prohibited the act of sodomy. Reversing its decision from 17 years earlier (upholding a Georgia ban), the Court found a right to
homosexual sodomy. Justice Kennedy explained why by digging back into a special concurrence from the "Casey" decision upholding abortion when he wrote, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the
universe, and of the mystery of human life."
I don't even know what that means, but it certainly has nothing to do with the Constitution or the law.
The real concern lies with the direction the Court clearly wishes to take the nation yet refuses to
admit. Gay marriage will soon be the policy of the United States, irrespective of federalism the Constitution, or the wishes of the American people. Not because it actually is protected in the Constitution, but because judges will declare it so.
Source: Fed Up!, by Gov. Rick Perry, p.109-110
, Nov 15, 2010
Recognize GLBT as a constitutionally-protected class
In "Romer v Evans", the Supreme Court struck down, 6-3, the Colorado constituent's provision that homosexual, lesbian, or bisexual status should not entitle any person to claim quota preferences, protected status, or discrimination. Thus, a women with a
room to rent could refuse to let it to a pair of homosexual men, or a church whose religion prohibited homosexual conduct could deny a practicing homosexual a position on its staff. The Supreme Court held, nevertheless, that the state's decision to
withdraw this special protection, which it was not required to give in the first place, was motivated only by "animus" and so could not stand under the rationale of the equal protection clause.
The decision is an unsupported victory for homosexual
activists. As Justice Scalia said in dissent, the Colorado constitutional provision was merely a "rather modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority."
Source: Slouching Towards Gomorrah, by Robert Bork, p.112-114
, Dec 16, 2003
Can’t outlaw flag burning
Usually conservative, and part of the majority bloc that favors states’ rights, but voted against states that wanted to outlaw flag burning.
Source: (X-ref government) Reuters article in Boston Globe, p. A45
, Dec 1, 2000
Disallow all sodomy laws against same-sex activity.
Justice Kennedy wrote the Court's decision on Lawrence v. Texas on Jun 26, 2003:
In a landmark 6-3 ruling, the Court struck down a sodomy law in Texas and, by proxy, invalidated sodomy laws in the 13 other states where they remained in existence, thereby making same-sex sexual activity legal in every state. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.
HELD: Delivered by Kennedy, joined by Stevens, Souter, Ginsburg, Breyer; O'Connor concurringIn reversing a Texas court ruling, the Court overruled its previous decision in Bowers v. Hardwick, holding that a Texas statute prohibiting certain sexual acts--namely those between same-sex partners--violates the Due Process Clause of the Fourteenth Amendment. The Supreme Court voted 6–3 to strike down the Texas law, and Sandra Day O'Connor found that it violated equal protection guarantees.
DISSENT #1: By Scalia, joined by Rehnquist, Thomas
Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions from lower courts based on Bowers that, with its overturning, might now be open to doubt. Scalia also criticized the writers of the opinion for their unwillingness to give the same respect to the decision of stare decisis that some of them applied in Casey. Scalia also averred that state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers's validation of laws based on moral choices.
DISSENT #2: By ThomasThe law which the Court struck down was "uncommonly silly", but he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law.
Source: Supreme Court case 03-LAWR-TX argued on Mar 26, 2003
1st Amendment protects church's anti-gay funeral pickets.
Justice Kennedy joined the Court's decision on SNYDER v. PHELPS on Mar 2, 2011:
Marine Matthew Snyder was killed in the line of duty in Iraq. On public property about 1000 feet from his funeral service, the Westboro Baptist Church followed its custom of protesting at the funerals of service members with signs condemning both homosexuality and the US for supporting it. Snyder's father has been stricken by a grievous emotional reaction since. He sued the protestors and the church for intentional infliction of emotional distress (IIED).
HELD:Delivered by ROBERTS, joined by SCALIA, KENNEDY, THOMAS, GINSBURG, SOTOMAYOR, BREYER & KAGANThe Free Speech Clause of the First Amendment can be a defense, including those for IIED, if speech regards a public, rather than private, concern. The protestor's signs here concerned plainly public matters such as the moral conduct of the US and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy. The protestors can't be said to have used speech on
public issues to cloak an attack on the plaintiff. The protestors chose the location to increase publicity, but this does not mean the speech is less protected.
CONCURRED: BREYER concursThe State is not always powerless to provide protection, but upholding IIED liability on the protestors here would not serve the State's interest in protecting citizens against severe emotional harm. In this case, the protestors complied with police directions, picketed where it was lawful to do so, and could not be seen from the funeral.
DISSENT: ALITO dissentsThe protestors engaged in a personal attack on Snyder's memory through signs implying he was a homosexual, a Catholic, and doomed to hell for these “sins.” The direct nature of this assault on the dead marine and his family were made clear in a subsequent Internet posting directed at Snyder's character and his parents. The First Amendment does not shield these verbal assaults at such an emotionally vulnerable moment.
Source: Supreme Court case 11-SNYDER argued on Oct 6, 2010
Sociological analysis insufficient to prove gender bias.
Justice Kennedy joined the Court's decision on WAL-MART v. DUKES on Jun 20, 2011:
The plaintiffs were certified as a class by the district court in their suit against Wal-Mart, on behalf of 1.5 million female employees, seeking punitive damages and backpay owing to Wal-Mart's alleged discrimination against them in violation of Title VII of the Civil Rights Act.
HELD: Delivered by SCALIA; joined by ROBERTS, KENNEDY, THOMAS & ALITOThe certification of the class was inappropriate. Class certification requires proof that a class of persons have suffered the same injury by a general policy of discrimination. Wal-Mart's corporate policy forbids discrimination, and the plaintiff's only evidence of a general policy of discrimination is a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias. Since the expert testified he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was not significant proof.
That Wal-Mart gave local supervisors discretion over employment matters did not show that a central direction to use that discretion in a discriminatory manner. The claims for backpay were improperly added onto a class provision that allows only equitable relief, not monetary relief.
DISSENTED: GINSBURG concurs in part, dissents in part; joined by BREYER, SOTOMAYOR & KAGANI agree this class should not have been certified, but such a class might have proper under Rule 23(b)(3) seeking money damages. The Court should not have ruled on the class at this time, but rather remanded the issue for consideration and decision. The district court found evidence that 70% of hourly employees are female, but only 33% of managers. That, with other evidence, could support a common question, necessary for the resolution of all class members' cases, that corporate culture and lack of formal standards or training for employment decisions may have led to discrimination.
Source: Supreme Court case 11-WALMART argued on Mar 29, 2011
State laws can protect gay rights.
Justice Kennedy wrote the Court's decision on Romer v. Evans on May 20, 1996:
An amendment to the Colorado state constitution that would have prevented taking any action to recognize gay and lesbian citizens as a protected class was passed by voters in a referendum. Romer v. Evans is a landmark Supreme Court case; the first dealing with gay rights since Bowers v. Hardwick (1986), when the Court had ruled that a law criminalizing homosexual sex was constitutional.
HELD: By Kennedy, joined by Stevens, O'Connor, Souter, Ginsburg, BreyerThe court ruled 6-3 that Colorado's Amendment was unconstitutional. Rejecting the state's argument that the Amendment merely blocked gay people from receiving "special rights", Kennedy wrote, "To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed
by all other citizens. Though antidiscrimination laws "enumerated" certain groups that they protected, this merely served to put others on notice.
DISSENT: By Scalia, joined by Rehnquist, ThomasThe dissent states that the Colorado amendment is "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective is unimpeachable under any constitutional doctrine." Scalia argued that the Amendment did not deny homosexuals access to the political process but merely made it more difficult to enact laws that they favored. Scalia concluded, "Today's opinion has no foundation in American constitutional law, and barely pretends to. [The Colorado amendment] does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment."
Source: Supreme Court case 96-ROMER argued on Oct 10, 1995
Hate crimes should allow racial intent to affect sentencing.
Justice Kennedy joined the dissent on APPRENDI v. NEW JERSEY on Jun 26, 2000:
Apprendi fired several shots into the home of an African-American family and made a statement that he did not want the family in his neighborhood because of their race. He was charged with possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence [for racial intimidation]. After Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence. The court found that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count.
Held: (Stevens, joined by Souter, Ginsburg, Scalia & Thomas)
The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.
Concurrence: (Thomas & Scalia)
My view is that the Constitution requires a broader rule than the Court adopts. If the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—then the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny.
Dissent:(O’Connor, joined by Rehnquist & Breyer)
Our Court has long recognized that not every fact that bears on a defendant’s punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the “legislature’s definition of the elements of the offense is usually dispositive.” The Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of legislatures.
Source: Supreme Court case 99-478 argued on Mar 28, 2000
Uphold "Miranda", informing people being arrested of rights.
Justice Kennedy joined the Court's decision on DICKERSON v. UNITED STATES on Jun 26, 2000:
Mr. Dickerson, under indictment for bank robbery and related federal crimes, moved to suppress a statement he had made to the FBI, on the ground he had not received “Miranda warnings” before being interrogated. The Government appealed [on the grounds that] his statement was voluntary [as allowed by a Congressional law]. That court concluded that Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the admissibility question.
Held:(Rehnquist, joined by Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer)
In Miranda v. Arizona (1966), we held that certain warnings must be given before a suspect’s statement could be admitted in evidence. Congress then enacted a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress,
and we decline to overrule Miranda ourselves.
Dissent:(Scalia, joined by Thomas)
Today’s decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda. Marbury v. Madison (1803), held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution. That was the basis on which Miranda was decided. One will search today’s opinion in vain, however, for a statement (surely simple enough to make) that [the law in this case] violates the Constitution. [Instead, the Court is adopting] a significant new principle of constitutional law, in which statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that “announced a constitutional rule.” I dissent.
Source: Supreme Court case 99-5525 argued on Apr 19, 2000
Boy Scouts may exclude gay scoutmasters.
Justice Kennedy joined the Court's decision on BOY SCOUTS OF AMERICA v. DALE on Jun 28, 2000:
The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Mr. Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. Dale alleged that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.
Held: (Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas)
Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. An intrusion into a group’s internal affairs by forcing it to accept a member it does not desire [is an] unconstitutional burden. However, the freedom of association is
not absolute; it can be overridden by regulations adopted to serve compelling state interests.
Dissent:(Stevens, joined by Souter, Ginsburg, & Breyer)
New Jersey “prides itself on judging each individual by his or her merits” and on being “in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.” Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges “of any place of public accommodation.”
The majority holds that New Jersey’s law violates BSA’s right to associate and its right to free speech. But that law does not “impose any serious burdens” on BSA’s “collective effort on behalf of its shared goals,” nor does it force BSA to communicate any message that it does not wish to endorse. New Jersey’s law, therefore, abridges no constitutional right of the Boy Scouts.
Source: Supreme Court case 99-699 argued on Apr 26, 2000
Page last updated: Sep 21, 2020