An article at Slate suggests that, as all eyes have (quite rightly) been on Justice Anthony Kennedy as we await rulings on the Prop 8 and DOMA cases, we may have completely missed his beliefs on this issue, beliefs that he expressed quite openly during oral arguments:
In March, during the oral argument about California’s same-sex marriage ban, Kennedy said that he was “trying to wrestle” with a “difficult question” about the constitutionality of same-sex marriage. The question on his mind was whether prohibitions on same-sex marriage are a form of gender discrimination. The lawyer defending the ban, Charles Cooper, responded that this was a case about sexual orientation, not gender, and the argument quickly moved in a different direction.
But we shouldn’t dismiss Kennedy’s question about gender discrimination too hastily. The court’s precedents on gender might offer Kennedy the conservative compromise he is looking for: a way to recognize a constitutional right for same-sex marriage in a limited way.
The gender-discrimination argument is not complicated. Imagine Alice applies for a license to marry Charlie and it is granted. Yet if Bob applied for a license to marry Charlie, he would be denied. The crucial difference between Alice and Bob is, of course, their gender—not their sexual orientation. In fact, as we all know, homosexuals have long been free to marry members of the opposite sex. Thus, Kennedy is wrestling with the possibility that Bob is being discriminated against because he is a man and not because he is gay. And, if so, should the court apply the same level of heightened protection it traditionally applies whenever the government treats men and women differently?
The article goes on to point out that opponents of equality argue that this is not truly discrimination, since everyone is being granted and denied equally. However, for that argument to work, one must accept the notion that marriage is inherently gendered, when, in simple reality, it’s not:
Surely Kennedy could easily see through this kind of circular logic. Marriage is a “gendered term” that “by definition and usage” involves only members of the opposite sex precisely because we have always prohibited same-sex couples from marrying. In Loving, there was a similar reliance on the so-called natural state of marriage. The trial court judge declared “there was no cause for” interracial marriage because “God created the races … and did not intend for the races to mix.” But it proves nothing to say that marriage is innately one way and must remain that way when—whether because of alleged divine order or legal fiat—it has never had the opportunity to be any other way. Marriage is no more an inherently gendered institution than an inherently racial one.
The writer suggests that this train of thought may be particularly appealing to Justice Kennedy, who expressed concerns about moving “too fast,” by giving him a long established framework of precedent to apply to gay and lesbian couples, without having to even worry about the question of discrimination against gays as a suspect class.
We will know the answer to this question soon enough.