Justice Kennedy ‘to invent new constitutional right’

Supreme Court Justice Anthony Kennedy

Traditional marriage supporters and legal reporters suggest Tuesday’s oral arguments on the definition of marriage mean the Supreme Court could go either way on marriage, but a respected legal scholar says the track record of the justices shows the odds are still strongly with supporters of same-sex marriage.

Justice Anthony Kennedy is seen as the key vote on this issue since five justices are needed for a majority, and the four liberal justices are virtually certain to endorse “gay marriage” nationwide. Kennedy has been reliably sympathetic to the arguments of homosexual activists in previous cases, as evidenced by his opinion in Lawrence v. Texas, which struck down anti-sodomy laws in 2003, and his 2013 ruling in Windsor v. United States, which overturned the federal government’s ban on same-sex marriage.

On Tuesday, however, the justices heard arguments on whether states have the right to define marriage for themselves and whether states should be forced to recognize marriages legally performed in other states. Observers noted Kennedy’s obvious reluctance to redefine the institution of marriage.

“The word that keeps coming back to me is ‘millennia,’” Kennedy said. “This definition has been with us for millennia. It’s very difficult for the court to say, ‘Oh well, we know better.’”

Many traditional marriage activists see this legal battle as an uphill climb, especially just two years after Windsor. But those words from Kennedy clearly raised their hopes.

“For months, we’ve endured a barrage of claims that it is ‘inevitable’ that the Supreme Court will issue a ruling imposing same-sex ‘marriage’ on the entire nation. Yet today’s questioning from the justices themselves makes clear nothing is inevitable,” said National Organization for Marriage President Brian Brown in a message to supporters.

Ethics and Public Policy Center President Ed Whelan is also an ardent defender of traditional marriage, but he is not expecting good news when the court renders its decision in June.

“I come out of oral argument with the same pessimistic view with which I went in,” Whelan said. “When you look at Justice Kennedy’s record, what he’s written, what he’s done over the past 20 years, I think he is very very likely vote to invent a constitutional right to same-sex marriage.”

Listen to the WND/Radio America interview with Ed Whelan:

Whelan is also insistent that trying to determine the court’s decision based on oral arguments is a fool’s errand.

“I’m simply not going to assign much weight to any particular passage in the oral argument,” he said. “Anyone who’s attended these arguments knows that it’s a rather chaotic affair. Justice Kennedy’s questions are sometimes coherent, sometimes not. Same for the other justices.”

He said Kennedy’s concern over millennia of tradition may only be a smokescreen.

“I think he may have had an interest in appearing open-minded, to appear as though he hadn’t made up his mind,” he said, “but I’m very skeptical.”

Whelan said more than 25 years of Kennedy votes and opinions tell him a lot more than one oral argument.

“I would assign far greater weight to what Justice Kennedy did two years ago in Windsor, far greater weight to the Supreme Court’s denial of review last October from the four courts of appeals that had struck down state marriage laws, far greater weight to the Supreme Court’s incomprehensible refusal to stay the district court ruling in Alabama,” Whelan said.

Whelan’s pessimism is not an admission that traditional marriage forces have the weaker legal argument. On the contrary, he firmly believes the Constitution is on the side of the states.

“The Constitution clearly leaves the matter to democratic processes, but if you’re a living constitutionalist like Justice Kennedy who believes the Constitution means whatever you want it to mean, then you can make things up as you go along and no argument I’m going to make is going to have much of an impact,” he said.

Same-sex marriage advocates say their case is solidly backed up by the equal protection clause of the 14th Amendment to the Constitution, which ensured the same rights to all Americans upon the abolition of slavery. Whelan said that argument is far weaker than it seems.

“It’s far-fetched to read the 14th Amendment [and] to read that the very sort of laws that existed everywhere at the time that the 14th Amendment was adopted and existed everywhere until 2003 are now to be deemed unconstitutional, even though no one thought that the 14th Amendment had anything to do with altering the male-female definition of marriage,” he said.

Another reason many traditional marriage supporters hold out hope for either a win or a more limited ruling at the Supreme Court is because the justices are reportedly wary of issuing another sweeping decision that may only further polarize the nation in the way that the 1973 Roe v. Wade decision did on abortion.

Whelan said there’s no reason to think that will be a mitigating factor in this ruling.

“No, I think you have in Justice Kennedy and other justices a real extreme view of judicial power,” he said. “As Justice Kennedy said in the Planned Parenthood v. Casey case that ratified Roe two decades ago, he expects that the people acquiesce in whatever the court does. So I put nothing beyond what Justice Kennedy and other members of this court might do.”

As for the long-term view, Whelan said marriage is already in deep trouble, thanks largely to the way heterosexuals have sullied the institution and triggered an out-of-wedlock birthrate of 40 percent and rising. He said that is simply unsustainable.

“We’re transmitting the pathologies of out-of-wedlock birth from generation to generation in a way that will make it very difficult to sustain the sort of civilization we’re used to having,” Whelan said.

He said championing “a thriving marriage culture” is the way out of this mess, but he insisted same-sex marriage will only make that harder.

“I don’t see how we can do that if five justices on the Supreme Court believe that the Constitution renders irrational any connection between marriage and procreation,” Whelan said.

“If marriage is redefined away from its core mission, it’s going to perform that mission less well and the consequences will be severe.”

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