I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.
Justice Kennedy? Hot sauce to go with those words?...
Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity.Justice Kennedy is certainly very important in the prediction of what the Supreme Court will do, and Walker may have written with the intent to influence him, but let's give Sandra Day O'Connor the respect she deserves. The line "moral disapproval, without any other asserted state interest,' has never been a rational basis for legislation" is from O'Connor's concurring opinion in Lawrence — and Walker's opinion is clear about that (on p. 133).
No other Justice joined O'Connor, who rested on the Equal Protection ground. Justice Kennedy wrote the majority opinion relying on the Due Process ground — talking about "the heart of liberty" being "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." That's what Lithwick refers to in her last sentence about writing "eloquently about dignity and freedom." But the O'Connor opinion in Lawrence will be more important in determining the same-sex marriage question, because that isn't a request to be left alone. It's a request for equal legal status — for recognition from the state.
Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.... Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.
Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”
... The Equal Protection Clause “ ‘neither knows nor tolerates classes among citizens.’ ” Id., at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).Let's give Sandra Day O'Connor her due. She said some things no one else said.
ADDED: Indeed, the language from Kennedy's Lawrence opinion that speaks "most eloquently about dignity and freedom and the right to determine one's own humanity" is itself a quote from the plurality opinion in Planned Parenthood v. Casey — which was jointly written by O'Connor, Kennedy, and Souter. Here's Kennedy in Lawrence:
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.