Justice Kennedy’s Gay Rights Legacy

by | Oct 3, 2018

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About Luke A.Boso

Luke Boso joined the Southwestern faculty in the summer of 2023, where he teaches Constitutional Law I, Constitutional Law II, and Criminal Law. Professor Boso began his legal career by clerking for a state court judge in West Virginia, followed by a year in private practice during which he litigated issues of police brutality and misconduct in Southern California. Professor Boso then began his career in legal academia as a Law Teaching Fellow from 2011-13 with the Williams Institute at the UCLA School of Law. The Williams Institute is a think tank devoted to advancing LGBTQ+ rights through law and policy. From 2013-14, Boso was an Associate Professor at Savannah Law School, where he taught constitutional and property law courses. From 2014-23, Professor Boso held appointments at the University of San Francisco School of Law, where he primarily taught constitutional and criminal law courses in both the day and evening programs; he also taught Family Law, Remedies, and an Education Law seminar. Professor Boso also served as a Visiting Professor at the UC College of the Law, San Francisco, teaching Constitutional Law II in the fall semesters of 2019-21.


Luke A Boso, “Justice Kennedy’s Gay Rights Legacy” (OxHRH Blog, 3 October 2018), <https://ohrh.law.ox.ac.uk/justice-kennedys-gay-rights-legacy> [date of access].

Justice Anthony Kennedy’s announced retirement left progressives reeling over what the Court’s inevitable rightward shift will mean for civil rights given Kennedy’s swing-vote status on cases implicating social issues.  Indeed, his presence was pivotal for gay rights.  Kennedy authored the Court’s most famous pro-gay decisions, many decided 5-4.  Kennedy’s gay rights legacy is complicated, however, for doctrinal and ideological reasons.

Kennedy first emerged as a gay rights champion in 1996 after penning the majority decision in Romer v. EvansRomer stemmed from a voter initiative repealing all Colorado ordinances prohibiting sexual orientation discrimination, and barring all future governmental action protecting gay people.  The Court struck down the initiative under Equal Protection principles.  Kennedy reasoned: due to the law’s breadth and the mismatch between its effects and Colorado’s asserted interests, it raised “the inevitable inference that the disadvantage imposed is born of animosity.”  Unfortunately, Kennedy did not discuss whether sexual orientation is a suspect or quasi-suspect classification.  This finding would have raised the standard of review in future cases, requiring governmental actors to prove that anti-gay actions are narrowly tailored or substantially related to a compelling or important interest.  Instead, Kennedy’s silence enabled lower courts to apply minimally rigorous rational basis review to sexual orientation classifications.  Without clear evidence of animus, the government can usually muster a legitimate interest for discrimination.

Kennedy advanced his gay rights legacy by writing the Court’s 5-4 majority opinion in Lawrence v. Texas (2003)Lawrence stemmed from a Texas law criminalizing same-sex oral and anal sex.  The Court struck down the statute under Substantive Due Process principles.  Kennedy reasoned that adults possess a “liberty interest” in consensual sexual activity in the privacy of a home with another person.  Moreover, Texas had no “legitimate” interest for this intrusion into private lives.  While LGBTQ rights activists cheered the outcome, constitutional law experts remain confused.  By finding a “liberty interest” at stake rather than a fundamental right, and by questioning whether Texas had a “legitimate” rather than a compelling interest for targeting gay people, Kennedy seemingly used rationality review over the more searching strict scrutiny typically associated with Substantive Due Process claims.  Further, the identified liberty interest arguably excludes less traditional forms of sexual expression.

Kennedy cemented his gay rights legacy by penning the 5-4 decisions in the marriage cases.  First, in U.S. v. Windsor (2013), the Court struck down a provision of the Defense of Marriage Act (“DOMA”) defining marriage under federal law as between one man and one woman.  Next, in Obergefell v. Hodges (2015), the Court struck down all laws prohibiting same-sex marriage.  In both cases, Kennedy emphasized dignitary harms and stigmatizing impacts that same-sex marriage bans inflict on gay people.  In Windsor, like in Romer, Kennedy focused on the evidence of animus against gay people in the legislative record to show why DOMA was irrational.  In neither case, however, did Kennedy find that sexual orientation is a suspect or quasi-suspect classification warranting stricter judicial oversight.  Moreover, although Obergefell focused on the negative impact that same-sex marriage bans have, an isolated disparate impact analysis contradicts longstanding precedent requiring proof of both discriminatory impact and intent.  It is unclear what Kennedy’s reliance on impact alone means for future civil rights cases.

Apart from doctrinal ambiguity and moderate analytical framing, Kennedy’s gay rights legacy is complicated by votes in two First Amendment cases.  First, in Boy Scouts of America v. Dale, Kennedy sided with the conservative majority in ruling that New Jersey’s public accommodations law, requiring Scouts to admit an openly gay scoutmaster, violated the scouts’ expressive association rights.  The Court in Dale deferred to the Scouts on its claim that homosexuality conflicts with its message regarding the virtues of being “morally straight” and “clean.”  The Court then deferred to the Scouts on its claim that admitting openly gay scouts “significantly affects” its expressive message.  Dale carves out ample room for public accommodations to exclude LGBTQ people and other minorities based on self-assessments of the burden of inclusion.

Finally, Kennedy ended his tenure by siding with a religious baker who refused to bake a cake for a gay couple’s wedding.  In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court focused on proceedings during the Commission’s formal hearings.  Specifically, one commissioner said: “[R]eligion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, . . . we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”  Through a pro-LGBTQ rights lens, these comments might seem innocuous and even obvious; gay people deeply understand how religion can be used to harm them.  Instead, Kennedy sympathized with a purported Christian victim, characterizing this comment as “disparaging” of religious beliefs.

Kennedy undoubtedly advanced formal gay rights.  Kennedy also advanced the cause of religious and moral dissenters who seek exemptions from pro-gay antidiscrimination laws.  It is thus unclear how Kennedy’s absence will affect gay rights going forward, particularly as this battle is increasingly fought in First Amendment territory where the religious right deploys free speech and religion claims to thwart antidiscrimination laws.

This post is part of a series on Justice Kennedy’s human rights legacy. You can see the introductory page here, and the Nicholas Stump’s post on Justice Kennedy’s environmental legacy here. Posts in this series will appear over the next couple of weeks.

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