By Mike Dorf
Today's NY Times includes a story about Justice Kennedy by Adam Liptak: Surprising Friend of Gay Rights in a High Place. In addition to quoting me a number of times (shameless self-promotion accomplished!), the piece includes the quotation from Justice Kennedy that I've used to title this post: "Freedom is always a work in progress." That line is susceptible of two, contradictory, interpretations. Justice Kennedy might be saying that it takes time to accomplish full liberation, and so marriage equality advocates should not expect the SCOTUS to find a general right to same-sex marriage (SSM) in the very near future. Or he might be saying that he and the Court are already prepared to complete the task.
Evidence for the former view might be found in the federalism-focused language of Justice Kennedy's majority opinion in United States v. Windsor. As Chief Justice Roberts wrote in dissent, that language indicates that the majority sees a very substantial difference betweeen the Defense of Marriage Act (DOMA) and state laws denying a right to SSM. One could also point to Justice Ginsburg's repeated statements criticizing the pace of change on abortion in Roe v. Wade as indicating that even some Justices who could be expected to favor a right to SSM are not prepared to vote that way yet. And one could note that Justices Ginsburg, Breyer and Kagan--all presumed votes for SSM eventually--voted against reaching the merits in Hollingsworth v. Perry.
Pointing in the other direction are the broad language and logic of the Windsor decision. Justice Scalia, in his dissent, took the view that the Court was signaling that it would undoubtedly find a full right to SSM as soon as it was presented with the opportunity. In addition, Justice Ginsburg herself has recently made clear that her views about the pace of change with respect to abortion do not translate to marriage equality. (She said "I wouldn't make a connection.") And, as today's Times story noted, she recently became the first Justice to officiate at a same-sex wedding.
To be sure, it's possible that one or more of the other Justices--Breyer? Kagan?--would hold out. (Justice Sotomayor was with Justice Kennedy in voting to reach the merits in Perry so she's not a potential holdout.) But I think that's unlikely. I can't imagine that any of the Justices who voted in the majority in Windsor would want to be the defector who votes against full marriage equality. I have an especially hard time imagining that Justice Kennedy would be that defector, knowing that voting against marriage equality would tarnish--or at least complicate--his legacy on gay rights issues.
If I'm right about all of the foregoing, gay rights advocates must now find themselves in an unaccustomed position. For years, they worried about going to the Supreme Court with issues too soon--worried that the Court would rule against them and thus entrench precedents that would be harder to overrule down the road. Now they may worry about getting to the Court too soon in a different sense: A SCOTUS ruling recognizing a full right to SSM within the next couple of years might spark regional backlash that would delay popular support for SSM and gay equality more generally.
That's only a possibility, of course. Political reactions to SCOTUS rulings are notoriously complex. A 2015 ruling finding a general right to SSM could be greeted with a yawn, providing grist for right-wing talk radio but little more. In any event, there's little that leaders of the leading gay rights organizations can do to slow down the litigation train. At this point there are so many challenges to state laws in the works that one of them is likely to get to the Court in the next couple of years, unless at least six Justices themselves decide to deny cert in these cases. Given the vote in Perry, that seems unlikely.