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May 21, 2014 11:09 AM It’s Still Anthony Kennedy’s World

By Ed Kilgore

Those of us focused on primaries yesterday—including contests in Oregon and Pennsylvania—may have given insufficient attention to the fact that federal judges in those two states added them to the list of jurisdictions with same-sex marriage bans held to be unconstitutional. Such developments have become so routine that marriage equality supporters barely have time to celebrate before anticipating the next fall of the gavel in their favor.

But as Jay Michaelson reminds us today in a Daily Beast column, these decisions are only so good as their durability on appeal. And at the end of the current road to marriage equality stands a Supreme Court where four Justices are very likely to disapprove the reasoning of the lower courts, leaving the ultimate decision, once again, in the hands of Justice Anthony Kennedy.

Michaelson points out that virtually all of these lower-court decisions outstrip Kennedy’s holding in U.S. v. Windsor, the case that brought down the Defense of Marriage Act:

Unlike the recent decisions, Justice Kennedy’s Windsor opinion was a narrowly tailored document with a two-part logic. First he observed that marriage is a matter for the states, some of which had extended it to include same-sex couples. Second he wrote, “interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”

I’ve italicized that phrase for a reason. Notice that Justice Kennedy did not say same-sex marriage is a fundamental right or that DOMA violated the equal protection clause on its own terms. Rather, the state of New York had conferred the “dignity” of marriage on its gay and lesbian couples—and Congress had taken it away. Concluding that DOMA violated the Fifth Amendment’s due process clause, the Windsor opinion held that “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.”
That is a jurisprudentially conservative opinion, even if it led to a socially liberal result. Congress cannot treat unequally those whom a state has chosen to treat equally. Most of the last year’s marriage opinions have been far broader.

Michaelson goes on to predict Kennedy will find his way to a validation of these decisions, following a deeper logic that goes back to his landmark opinion in Romer v. Evans nearly two decades ago. But it’s a sobering reality that when it comes to constitutional law, it’s still Anthony Kennedy’s world; we’re just living in it.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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