As Another Federal Appeals Court Decides in Support of Marriage Equality, the Position of Catholic Supreme Court Justice Kennedy Becomes More Pivotal

The United States Court of Appeals for the First Circuit, Boston, ruled unanimously yesterday that a crucial section of the federal Defense of Marriage Act (DOMA), which limits marriage to heterosexual couples, is unconstitutional.  The significance of this decision will not have an immediate impact on gay and lesbian couples, but could pave the way for a Supreme Court decision. (This decision joins an earlier federal court decision supporting marriage equality in California this past year which also makes a Supreme Court review likely) The New York Times reports:

“The decision. . .will have no immediate effect because the court stayed its ruling in anticipation of an appeal to the Supreme Court. Legal experts said the justices could agree as early as this fall to hear the case and arguments could come next spring, making it the first case involving the same-sex marriage law to be decided by the court.

“While the case dealt narrowly with the question of federal benefits for same-sex couples — not with the legality of same-sex marriage itself — many scholars said it was a significant moment in civil rights.

“ ‘It is another illustration of the growing consensus of the judiciary about the unconstitutionality of discriminating against gays and lesbians in the realm of marriage,’ said Geoffrey Stone, a professor of law at the University of Chicago.

“Another case, from California, does test the broader constitutionality of same-sex marriage, and as it has percolated through the courts, some proponents have said they preferred that it be in the vanguard. But others have felt that the incremental approach used in the Massachusetts case — much like the one used by opponents of abortion rights — would be more effective in achieving the movement’s ultimate goals of full equality for gay and lesbian couples.”

Justice Anthony Kennedy

Should the Supreme Court case arise next fall, commentators are already noting that a decision from the highest court in the land could turn on the decision of Justice Anthony Kennedy, a practicing Catholic, who is often the swing vote on the Court.  (Six of the nine sitting Justices are Catholic, by the way.) Earlier this week in a New York Times analysis, Bill Keller discussed the significance of Kennedy’s position:

“I’ve been trying to envision the Kennedy brief in defense of gay marriage.

“There is plenty of Kennedy to cite on the subject. Although he is a devout Catholic, he is the author of the two most important pro-gay-rights decisions handed down by the court. In 1996, in a case called Romer v. Evans, Kennedy wrote an opinion ending Colorado’s attempt to repeal local laws protecting gays against discrimination. There was no plausible explanation for Colorado’s action, he wrote, beyond “animus” — judicial language for plain bigotry. In his 2003 majority opinion in Lawrence v. Texas, Kennedy and company threw out all remaining state laws against sodomy, saying that how consenting homosexuals express their love is none of the state’s business. (The verdict prompted Justice Antonin Scalia, in an indignant dissent, to warn that Kennedy’s argument “dismantles” any constitutional case against gay marriage.)

Keller offers two reasons for Kennedy’s position on gay issues:

“In contrast to constitutional literalists like Justice Scalia, Kennedy believes the court should track evolving standards in society. The Kennedy brief can argue that the incremental but steady progression of marriage equality laws — and the polls showing accelerating public approval — are evidence that the nation is evolving toward an obvious outcome.

“Moreover, Justice Kennedy, who is widely traveled and cosmopolitan, is more open than the most conservative justices to arguments borrowed from foreign and international courts. He took note of European precedents in the ruling against sodomy laws. So the Kennedy brief on marriage could draw on the experiences of the 10 countries, from Canada to Spain to South Africa, that have legalized gay marriage, and the others (Israel and Mexico for instance) that recognize gay marriages performed in other jurisdictions.”

But Keller also cites the opinion of Yale Law Professor William Eskridge, Jr., as to why Kennedy may not support marriage equality in any upcoming Supreme Court case:

“Eskridge, too, has studied Kennedy, and notes that the justice’s passion for liberty is matched by his fear of getting too far in front of the social consensus. By the time of the Lawrence case, states had either repealed anti-sodomy laws or were not enforcing them. In contrast, most states have constitutional amendments or statutes limiting marriage to heterosexual couples, and many are of recent vintage.

“ ‘Kennedy does not vote in a way that he thinks is going to undermine the legitimacy of the court,’ Eskridge told me. Thus Kennedy has gone out of his way to stress that his earlier decisions did not necessarily lead to marriage equality.

“Eskridge supports gay marriage, agrees that it is inevitable, but believes it would be counterproductive, even dangerous, to force it on a nation that is still evenly and intensely divided. He contends that — like the Roe v. Wade legalization of abortion — a Supreme Court ruling in favor of nationwide gay marriage would inflame hostility, even violence, especially in the Southern states.”

Keller’s conclusion:

“My head tells me that Eskridge is probably right: Kennedy will be inclined to stop short of full equality now. But my heart will be rooting for Boies and Olson [analysts cited in Keller's article who believe that Kennedy will fully support marriage equality]. If that lesbian or gay couple in Mississippi or West Virginia have the courage to ask for a marriage license, I’d like to think the country has the courage to back them up.”

I hope that Keller’s heart is smarter than his head.

–Francis DeBernardo, New Ways Ministry

NEWS NOTES: February 21, 2012

Here are links to some items you might find of interest:

1) More evidence that lay Catholics and their bishops differ strongly on support for marriage equality comes from a new poll reported by The New York Times in an article “Support Is Found for Birth Control Coverage and Gay Unions.”  Though the poll surveyed the general electorate, they report findings for different sub-groups, such as Catholics:  “More than two-thirds of Catholic voters supported some sort of legal recognition of gay couples’ relationships: 44 percent favored marriage, and 25 percent preferred civil unions. “

2) In “Spectrum continues quest to abolish stereotypes on campus,” Loyola University Maryland’s student newspaper, The Greyhound, reports on upcoming semester plans for activities by their LGBTA organization.

3) If California’s Proposition 8 case makes it to the nation’s highest court, the “Gay marriage fight may hinge on Supreme Court’s Anthony Kennedy,” a Catholic, reports The Charlotte Observer.

–Francis DeBernardo, New Ways Ministry

 

The Catholic Factor of Proposition 8

The reaction of the Catholic hierarchy to the news yesterday that a federal court has declared California’s Proposition 8 unconstitutional has been, predictably, negative.  After all, the hierarchy, aided by over a million dollars from the Knights of Columbus, worked so furiously to get Proposition 8′s constitutional ban against marriage equality passed into law.

Bishop Gerald E. Wilkerson, president of the California Catholic Conference, and auxiliary bishop from Los Angeles, issued a response yesterday which included the following:

“We are disappointed by the ruling today by a panel of the Ninth Circuit that would invalidate the action taken by the people of California affirming that marriage unites a woman and a man and any children from their union. However, given the issues involved and the nature of the legal process, it’s always been clear that this case would very likely be decided by the U.S. Supreme Court. Marriage between one man and one woman has been—and always will be—the most basic building block of the family and of our society.”

But a reaction from an usher at Our Lady of Angels Cathedral in Los Angeles may indicate better where Catholics in the pew stand on this issue–even those who initially voted for Proposition 8.  Ruben Garcia is quoted on the public radio website, spcr.org:

” ‘As a parishioner and a Catholic and a married man, I do believe in the sanctity of marriage,’ Garcia said, ‘and I do believe that it should be between a man and a woman, but I’m torn because I also believe in the separation of church and state.’ “

Cathy Lynn Grossman, religion editor at USA Today, posted a story on their website that contains a variety of religious reactions to yesterday’s court decision, including that of Cardinal-designate Timothy Dolan, president of the United States Conference of Catholic Bishops, who called the ruling a “grave injustice.”

The possibility that this ruling will be appealed to the U.S. Supreme Court would put the fate of marriage equality into the hands of Catholics, who currently make up a  six-person majority on the Court (Antonin Scalia, Anthony Kennedy, Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor).  Though many of the news reports on the decision made it seem like a U.S. Supreme Court case on the matter is likely, Adam Nagourney’s article in The New York Times  was more cautionary in outlook:

“Both sides in the case made clear that they intended to take the case before the Supreme Court in hopes of prompting it to settle once and for all an issue that has been fought out in courts, legislatures and ballot boxes since at least a 1971 case in Minnesota. That said, there is no guarantee the court will take it. The narrow parameters of the ruling’s reasoning — and the fact that it was written to apply only to California — may prompt the court to wait for a clearer dispute before weighing in.”

Though this case temporarily provides a victory for the marriage equality movement in California, there is still work of reconciliation work to be done in the Catholic Church there.  In a post two weeks ago, I mentioned that a California friend told me that the hierarchy’s heavily funded campaign to pass Proposition 8 has had a harmful effect on the pastoral life of LGBT Catholics and their allies in California.  Many have become alienated from the church and left it because of the vociferous anti-gay nature of the campaign and its rhetoric.  While the hierarchy has been focused on the political nature of the marriage debate, it’s time that they started to look at the pastoral component of it, too, and begin the much needed work of reconciliation–for the good of the entire church.

–Francis DeBernardo, New Ways Ministry