Big Lizards:Blog:Entry “The Kennedy Konundrum”

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June 28, 2013

The Kennedy Konundrum

Hatched by Dafydd

Far be it from me to support Anthony Kennedy, but I believe many conservatives (e.g., those at Power Line, plus Patterico, Hugh Hewitt, Charles Krauthammer, and many others) are making the same fundamental error: They persist in thinking of United States v. Windsor (the "DOMA" case) as a same-sex marriage case (or even a "gay marriage" case); thus they act as if Associate Justice Anthony Kennedy, who wrote the majority opinion, was attempting to decide whether same-sex marriage (SSM) is constitutionally protected.

But that is not what Kennedy ruled. As far as I can make out from the opinion -- I haven't read all 30 pages of it, but I read the first five pages, which constitute his summary of his opinion -- Kennedy held that the states alone can define what constitutes marriage in that state, with a tiny few obvious exceptions that would run afoul of explicit prohibitions in the Constitution. And further, that if a state decides to allow SSM, then the federal government cannot discriminate against legally married same-sex spouses anent federal benefits.

More concisely, Windsor is not a pro-SSM decision; it is a pro-Federalism decision.

I am unalterably opposed to same-sex marriage; but I actually support Kennedy's decision in Windsor: If a state foolishly decides to allow SSM, the feds cannot second-guess that decision by refusing to recognize it for purposes of various federal benefits, from filing taxes as "married filing jointly," to receiving survivor benefits from Social Security or spousal benefits under Medicare, to retirement benefits for widows or widowers of federal employees, and so forth.

We can see this fundamental misunderstanding clearest in a quote Patterico used to prove a different (and correct) point -- that Bill Clinton is a flaming hypocrite:

Anthony Kennedy says those responsible for DOMA had the “purpose” to “disparage and to injure” same-sex couples:
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

Patterico didn't realize he had shifted subjects, from a pair of individuals to marriages: Kennedy isn't saying that the constitution bans disparaging gays; he says that the constitution bans disparaging some legal marriages (hence the associated spouses) as not as legitimate as others. One may agree or disagree with Kennedy's position, but it's not what many conservatives claim it is.

Personally, I adamantly oppose same-sex marriage (SSM); not on religious grounds (I'm not religious), but because I believe the central animating purpose of marriage is to join the male and female elements of Mankind so as to promote civilized behavior (which includes child-rearing), and to moderate the behavioral extremes to which each gender is prone when among a sex-segregated group. But I am more pro-Federalism than I am anti-SSM.

I don't know what's in Kennedy's mind; but everything that I have read indicates that he objects to discrimination against legally married people who are of the same sex... that is, same-sex spouses, not same-sex couples per se. And he has a point.

Consider this analogy: Most states allow two people to marry at sixteen (with parents' permission). But suppose a few states allowed marriage at age fifteen.

Now suppose Congress did not move to ban such marriages, but instead enacted a new bill, the Age Requirement of Marriage Act (AROMA), stating that for federal purposes, both parties to a marriage must have been over the age of sixteen at the time of the marriage.

You would then have the spectacle of every legally married couple in some state being able to file a joint return, receive federal survivor benefits, and so forth... except those who legally and properly married while one of them was still fifteen. You may think it a good law that you have to wait until sixteen to marry; nevertheless, would that not strike directly at the heart of Federalism, whereby the states set their own standards for marriage?

In our hypothetical, as in reality, federal law does not hold that states cannot set the age of marital consent to fifteen, nor does it hold that states cannot allow for SSM. It properly leaves both of those choices to the discretion of the individual sovereign states, as Federalism demands. (And if Congress passed a law banning either marital definition, I'm sure it would end up in the Supreme Court, and probably be struck down.)

But in our hypothetical, the state would first agree that two fifteen year olds were legally and properly married in some states, but then deny them the same federal benefits that all other married couples receive. That is clearly discriminatory, and I agree with Kennedy that it's wrongful and unconstitutional discrimination.

That is the crux of Kennedy's decision: Not that SSM must be allowed; but rather that, once a state has legally enacted SSM, the feds cannot pick and choose which legal marriages are "good" and deserve benefits, and which are "bad" and deserve a boot to the head from the invisible foot of Washington D.C. States that allow SSM cannot be declared separate and inequal by the federales, simply because some folks (like me) disapprove of such pseudo-"marriages."

Some commentators have mounted that misunderstanding and ridden it to defend Chief Justice John Robers at all costs. They announce that, since Kenney issued a "pro-gay marriage" decision in Windsor (which he didn't), he surely would have been "anti-Proposition 8" in Hollingsworth v. Perry, the case about whether it was constitutional for a state to ban SSM entirely. (Which he doesn't appear to have done; in fact, he argued federalism in that case, too; he has been perfectly consistent in these two related cases.)

These conservatives use that shaky claim to explain away Roberts' decision finding that the defenders of Prop. 8 -- a citizens' constitutional amendment that overrode the California Supreme Court and made SSM illegal again -- had no "standing" to appeal the district court decision striking down the amendment. (And to retroactively explain away his similar punting in the Obamacare case of a year ago; I heard that today on Hugh Hewitt's show, as well.)

They argue thus:

Kennedy ruled in favor of gay marriage in the Windsor case.

So he surely was about to rule in favor of gay marriage in Hollingsworth.

Therefore, Roberts had to rule against standing; it was a last-ditch defense against the onslaught of federally mandated SSM!

QED: Roberts must remain the conservative hero, just as he was in the Obamacare case!

(Even if this self-serving rationale was correct, it would still be an egregious violation of Roberts' oath of office. The Supreme Court is not in the business of bartering justice for politics.)

But that is a complete misreading of the Warren (DOMA) decision, based entirely upon the desire to villainize Anthony Kennedy (whom conservatives generally hate) and exonerate John Roberts (whom they love, and desperately want to continue loving). But let me remind you, from our previous post, of what Kennedy actually wrote in his dissenting opinion in Hollingsworth, the very case the pundits insist he wanted to use to force SSM on us all, by federal judicial diktat. Not what certain conservatives believe he secretly intended, but what he actually put into his opinion:

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.

To me, that does not sound like a man determined to pull down the edifice of Federalism. I don't buy the premise of these conservative, so I don't buy the bit. It's nothing but rank speculation fueled by bias, and steered by the desire to make the guy we all dislike into the "real villain" of the piece.

Hatched by Dafydd on this day, June 28, 2013, at the time of 9:16 PM

Comments

The following hissed in response by: AMR

I agree with your positions. But I go further; I worry that next we will see civil rights for those practicing polygamy. It seems that for many our western culture has to be destroyed.

The above hissed in response by: AMR at June 29, 2013 10:31 AM

The following hissed in response by: Dafydd ab Hugh

AMR:

You agree with my opposition to same-sex marriage. But do you likewise agree with the other position I enunciated above, the one I said was more important to me than anti-SSM?

Dafydd

The above hissed in response by: Dafydd ab Hugh at June 29, 2013 1:28 PM

The following hissed in response by: AMR

In reply, As one of the directors of our county's TEA Party you can imagine my position on federalism and government in general. My beliefs pre-date the TEA Party by 50 years. The expansion of the federal influence in our country, which has eviscerated the 9th and 10th Amendments, is a great concern of mine. Core Curriculum is the latest attack on state's and individual's rights. Shrinking the federal government may reduce its impact but we must go further than that. The federal government must return to its constitutional responsibilities and leave me and you alone.

The above hissed in response by: AMR at June 30, 2013 7:41 PM

The following hissed in response by: Dafydd ab Hugh

AMR:

I cannot find anything in your comment to which I would object; we are in perfect accord! (At least on these two issues... <g>

(I'm unhappy at Justice Kennedy's refusal to reinstate the stay for at least the 25 days promised by the lying scum of the 9th Circus. The two possibilities that occur to me are (1) Kennedy really is champing at the bit to force SSM down everybody's throat, which seems to contradict the whole thrust of his majority and minority opinions in the two cases; or (2) he queried the other justices and found enough who rejected a rehearing that it was pointless to force a stay of any length.)

Dafydd

The above hissed in response by: Dafydd ab Hugh at July 1, 2013 3:34 AM

The following hissed in response by: wtanksleyjr

I'm not happy with the track our country is on... So hey, I guess I AM a conservative ;-).

I did, however, decide that the logic of both rulings is consistent with previous rulings, and generally conducive to the rule of law, even though I would prefer to live under different laws. The fact that I approve of that situation means that I am a consistent conservative.

I am positively delighted to see that the DOMA ruling in particular is almost the anti-Roe-v.-Wade in that it admitted that the Feds are obligated to follow state law in places where the States are traditionally and properly given power.

There are a few exceptions to my general approval.

First, although federalism is an important principle, it's a gun that points both ways -- federalism gives states rights, but it also imposes authority over them in certain limited ways. One of the federalist principles in the original constitution was that "The United States shall guarantee to every State in this Union a Republican Form of Government." The principle behind that is being denied -- a republican form of government is (in short) a democracy with laws, and both democracy and law are being actively denied by the CA government. SCOTUS had both the power and the unique opportunity, and it was negligent to fail to act regardless of the lack of standing. I fear that this highlights a breach in CA's structure of government which if not patched will allow greater abuses.

Second, Kennedy's DOMA decision included the oft-quoted ruling that "no legitimate purpose overcomes the purpose and effect to disparage and to injure" -- a completely baloney claim that I expect will be echoed through many future decisions. I expect it to be read two ways: first that there is no legitimate purpose, and second that even a legitimate purpose cannot possibly overcome actual intent and effect of disparaging and injuring. The first reading is actually taken by Scalia, so it will certainly be argued as such (even though Kennedy didn't support it); the result will be that arguments made advancing actual purposes for opposing gay marriage as legitimate will be struck down as contradicting this ruling. The second reading will result in broader claims (for more purposes than gay marriage) being denied on the grounds that if anyone anywhere has disparaging intent towards any group and a given law produces a negative effect on that group, then regardless of any legitimate purpose of the law it cannot take effect. Personally, I consider Kennedy's statement to be self-refuting in every possible reading, and I hope this paragraph explains why. If Kennedy had provided evidence for his statement it might be possible to read it in a more limited sense (perhaps, for example, the margin by which DOMA was passed into law was provided by people who actually did have intent to disparage and injure above and beyond any the legitimate purpose they advanced -- a seemingly improbable claim, but if proven would make it easier to justify overturning a law).

...I'll leave it at that, my coffee isn't going to refill itself.

-Wm

The above hissed in response by: wtanksleyjr at July 2, 2013 9:58 AM

The following hissed in response by: mdgiles

IIRC, the original purpose of DOMA as to prevent SSM supporters from using it's legality in one state as a judicial lever, to pry open the marriage laws of non SSM states. Besides as I keep repeating, the Federal government's only interests in the tax law, should be the legitimate interests of the government. The government should restrict those federal benefits to male/female couples, because those couples met the government's vested interest - the production of a future generation of taxpayers. The government has no particular interest in your personal fulfillment, they simply want you to keep bumping uglies, and turning out bundles of joy.

The above hissed in response by: mdgiles at July 6, 2013 8:40 AM