Reflecting on Justice Kennedy’s Landmark LGBTQ-Affirming Rulings and How They Changed the Country

By Adam Polaski • June 27, 2018 • 6:11 pm

Today, June 27 Justice Anthony Kennedy, the longest-serving member of the United States Supreme Court announced that he would retire, effective July 31, 2018. His retirement has understandably provoked distress among advocates for a measured, balanced court, as Kennedy demonstrated time after time a disciplined commitment to his role as an arbiter of justice and ideological midpoint of the court.

But it is important to remember that no matter who replaces Justice Kennedy, he leaves behind a legacy of shining rulings affirming the dignity, humanity, and equality of LGBTQ people – and the progress that emanated from the decisions he authored is irreversible. Now more than ever, Americans overwhelmingly support LGBTQ people, and as challenges facing the community reach the Supreme Court again, as they surely will – including, potentially, cases involving transgender students, LGBTQ people who have faced employment and housing discrimination, and businesses seeking a constitutional “license to discriminate” – that soaring support for LGBTQ dignity will not evaporate.

We must continue to push forward and open our neighbors’ hearts and minds, and as Justice Kennedy’s replacement is discussed in the United States Congress, we must raise our voices demanding a fair and measured jurist.

Take a look back at excerpts from some of Justice Kennedy’s most stirring and impactful rulings for LGBTQ people:

Romer v. Evans

A 1996 ruling concerning sexual orientation and state laws was Kennedy’s first opinion dealing specifically with the rights of LGBTQ people. An amendment passed in Colorado prevented any laws being passed that would protect LGBTQ people from discrimination. Challenged by Richard J. Evans, an openly gay government employee, the case would eventually be decided in favor of the plaintiff by a vote of 6-3. Learn more about Romer v. Evans.

“[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

Lawrence v. Texas

This 2003 decision found anti-LGBTQ “sodomy” laws criminalizing homosexuality and bisexuality unconstitutional. The decision struck down shameful laws in a dozen states that remained on the books, clearing the way for LGBTQ Americans to share their lives – including their love, their relationships, and their full selves, without the stigma of criminalization. Learn more about Lawrence v. Texas.

“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”

“The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

United States v. Windsor

The 2013 case saw the Court strike down the Defense of Marriage Act, which restricted the definition of “spouse” to only different-sex couples. The plaintiff, Edith “Edie” Windsor, sought to claim the federal estate tax exemption for spouses after her wife, Thea Spyer, passed away in 2009. The couple was married in Toronto in 2007, and had their marriage recognized by the state of New York in 2008. The court ruled 5-4 that DOMA was unconstitutional, paving the way for recognition of same-sex marriage nationwide. Learn more about Windsor v. United States.

“DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations. It forces them to follow a complicated procedure to file their state and federal taxes jointly. It prohibits them from being buried together in veterans’ cemeteries. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”

Obergefell v. Hodges

This landmark 2015 decision saw the Court rule that same-sex couples must have the freedom to marry across the country, guaranteed by the Due Process Clause and the Equal Protection clause of the Constitution. The decision required all fifty states to issue marriage licenses to same-sex couples, and to recognize marriages performed in other jurisdictions. Learn more about Obergefell v. Hodges.

“No union is more profound than marriage for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”

“As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. … Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

“In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Masterpiece Cakeshop v. Colorado Civil Rights Commission

This 2018 Supreme Court decision concerned a Colorado bakery who refused service to a same-sex couple seeking a wedding cake, citing religious beliefs as an objection. Although the Court ruled that the Colorado Civil Rights Commission erred in its handling of the case and violated the Free Exercise Clause, Kennedy wrote in his opinion that discrimination against LGBTQ people and others is unlawful. Learn more about Masterpiece Cakeshop

“…Religious and philosophical objections are protected, [but] it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

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