The Supreme Court could issue a ruling any day now on the legality of same-sex marriage, and everybody is focusing on one justice — “swing voter” Anthony Kennedy.
Kennedy made two comments during arguments in April that could reveal his thinking on whether states should be able to ban gay marriage.
When gay-marriage advocates made their case, Kennedy commented that the definition of marriage had “been with us for millennia,” according to The Wall Street Journal. Kennedy questioned whether the high court should create a new definition and say “we know better.”
Later in the arguments, though, Kennedy said his sense was that a “principle purpose of marriage was to afford dignity to the couples, which is denied to same-sex couples,” SCOTUSblog’s Tom Goldstein wrote.
Goldstein then observed: “He is clearly weighing two things: the definition of marriage has been the same for ‘millennia’ versus the fact that denying marriage to same-sex couples is an affront to their dignity (and that of the children they raise).”
The Supreme Court most recently heard the issue of gay marriage in 2013, when it struck down the Defense of Marriage Act (DOMA), a law that said the federal government didn’t recognize gay marriages. In effect, DOMA deprived married same-sex couples of many of the benefits available to married opposite-sex couples.
Kennedy, who has a history of writing pro-gay-rights opinions, wrote the opinion striking down DOMA. That opinion touched on the dignity that marriage rights bestowed on same-sex couples.
Recently, Kennedy has been recognized as an “unlikely gay rights icon,” as The New York Times noted this week, adding that he has had two gay clerks. Still, one of those former clerks, Paul T. Cappuccio, pointed out that one can’t take for granted that the justice’s friendships with gays will influence his opinion.
“He takes liberty very seriously. Sure, I think it could be natural that one’s life experiences can have an impact,” Cappuccio told the Times. “But I think it would be belittling of Justice Kennedy to say he might vote to recognize a constitutional right to same-sex marriage just because he knows people who are gay.”
The current case centers on the constitutionality of same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee, and it will consider these two questions:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?
A decision is expected as soon as Thursday.