Cross-posted on The Faculty Lounge
In re-reading the marriage cases this afternoon, something struck me: where are the liberals?
There are six opinions in the two cases. Justices Kennedy wrote the majority opinion in Windsor, with Chief Justice Roberts and Justices Scalia and Alito writing dissents. Chief Justice Roberts wrote the majority opinion in Perry with Justice Kennedy writing the dissent.
The four liberals joined Justice Kennedy in Windsor but each was silent about their own thoughts. Three of the liberals joined Chief Justice Roberts in Perry (Breyer, Ginsburg, and Kagan). Justice Sotomayor joined Justice Kennedy’s dissent. Each was silent about their own thoughts on this case as well.
Why does this matter? Presumably, at least one of these four has some view of the Constitution that endorses a more robust view of gay rights than Justice Kennedy. Kennedy has certainly been a proponent of gay rights, but not in a way that has changed the level of scrutiny and put discrimination based on sexual orientation on par with discrimination based on sex or race, a central cause in current-day LGBT advocacy. In fact, Kennedy hasn’t ever been really clear about how exactly he is analyzing discrimination against gays and lesbians. His opinions are full of lifting rhetoric, but are short on clear analysis that helps future litigants and judges.
Without any of the liberals writing separately, we don’t have any official statement in the Supreme Court Reporter from any Justice arguing that sexual orientation discrimination in all of its forms is odious to the Constitution. We don’t have any Justice with a ringing endorsement of equality for LGBT people. We don’t have any Justice making the strong case for marriage equality.
By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause. After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.
What’s even more troubling about this is that this appears to be a trend. In its history, the Court has issued four decisions advancing the cause of gay rights — Windsor today striking down DOMA, Perry today rejecting the appeal of the decision finding Prop 8 unconstitutional (I’ll give the Court the benefit of the doubt here by calling Perry a case advancing gay rights), Lawrence 10 years ago rejecting Texas’s sodomy statute, and Romer 17 years ago finding Colorado’s Amendment 2 unconstitutional.
Combined in those cases there have been 12 separate opinions. Not a single one was written by anyone to the left of Justice Sandra Day O’Connor. (Kennedy has written 4 times, Scalia 3 times, O’Connor 2 times, and Thomas, Alito, and Roberts each 1 time.)
Of course, when it comes down to it, the liberals on the Court owe the public nothing other than their votes. In that regard, this current batch of liberal Justices has reliably voted for gay rights since 1996, and that should be celebrated.
But, it really would be wonderful if one of them had stepped up with a resounding call for gay equality in any one of these cases. Instead, all we get from them is silence.