Fully Equal Marriage, 10 Years After Lawrence v Texas

It seems like Supreme Court Justice Anthony Kennedy made up his mind on gay marriage a decade ago.

Some months ago, I half-seriously opined that the Supreme Court justices might be finagling to issue a major ruling in favor of same-sex marriage on the 10th anniversary of the Lawrence v Texas decision, which I have long argued made legal same-sex marriage throughout the United States inevitable.

Today is in fact the 10th anniversary of Lawrence.

Today’s Supreme Court ruling, striking down provisions of the Defense of Marriage Act (DOMA) that deny federal benefits to married same-sex couples, has real consequence for a great many people in Massachusetts. It is also a big deal in the big-picture, arc-of-history sense, but let’s not forget that actual people just had their lives improved because the highest court in the country said the federal government can’t treat them like crap for being gay.

Now, about the big picture.

With the caveat that we’re just getting our first look at the decision, I think it’s clear that Justice Anthony Kennedy is fully prepared to side with the four generally liberal judges to declare all bans on same-sex marriage unconstitutional. He is not one to jump further than necessary, so it will require additional test cases. But I think he’s mentally made the leap.

Indeed, I have believed that he made that leap before there was any legal same-sex marriage in the United States—in 2003, when he authored the majority opinion in Lawrence v TexasLawrence struck down state anti-sodomy laws as unconstitutional. The decision effectively said that the government cannot criminalize homosexuality: “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Without that ability—for the state to condemn homosexuality per se—the state loses its ability to treat homosexuals differently in any way, without having some at least arguably legitimate reason to do so, aside from the state’s desire to stop people from being homosexuals.

The specifics get more complicated, but ultimately, it really does come down to that. The state can’t offer something—like marriage recognition—to other people and not to homosexuals, unless the state is doing it for some other reason. And whenever anyone tries to argue that really it’s not about homosexuality, that it’s really about something else, they’re pretty much lying.

All of this was argued very explicitly at the time by gay-rights opponents. (Remember, DOMA had already been law for about seven years when Lawrence was decided.) In amicus briefs and public discourse, religious and conservative groups argued very clearly that if the Court struck down Lawrence, it would eventually have to allow homosexuals to marry each other.

Kennedy, as the author of that decision, was surely not oblivious to that argument. He might have disagreed and thought there was a way to split that baby, but I have always suspected that he understood and agreed with it—unlike Sandra Day O’Connor, who wrote a separate concurring opinion that specifically carved out an argument for how the state would theoretically still be able to ban same-sex marriage (to preserve traditional something-or-other).

We’re not yet there, but to me, it sure looks like Kennedy is just answering the questions put to him, as they come, to let it play out step-by-step rather than leaping ahead to the conclusion. Today was a huge step, the first by the Supreme court since Lawrence. Let’s hope it doesn’t take another 10 years for the next one.