(CNSNews.com) - Justice Anthony Kennedy, who is 81 years old, announced today that he is retiring from the Supreme Court.
The two opinions Kennedy wrote that may have had the greatest impact on American society and law were both in 5-4 decisions, where he was the swing vote. One upheld Roe v. Wade and declared abortion a constitutional right. The other declared that same-sex marriage is a “right” and that the Constitution commands that the states recognize it.
Kennedy was nominated to the Supreme Court in 1987 by President Ronald Reagan—but only as Reagan’s third choice for the vacancy created when Justice Lewis Powell, a Nixon nominee, retired.
Reagan had first nominated Judge Robert Bork, an intellectually honest conservative who served on the U.S. Court of Appeals for the District of Columbia, who lost a Senate confirmation vote 42-58. After Bork’s defeat Reagan nominated Judge Douglas Ginsburg. But after it was revealed that Ginsburg had smoked marijuana while a young law professor at Harvard, he had to withdraw.
It was then that Reagan nominated Kennedy—who won the unanimous backing of Senate Democrats (and Republicans) and was confirmed in February 1988.
Four years later, in 1992, Kennedy joined with Justices Sandra Day O’Connor and David Souter in writing the opinion of the court in Planned Parenthood of Southeast Pennsylvania v. Casey.
In this 5-4 decision, Kennedy upheld the basic findings of the 1973 Roe v. Wade decision and declared that abortion was a “right.”
Kennedy argued that allowing a woman to terminate the life of an unborn child was required by the “liberty” protected in the Fourteenth Amendment.
“After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed,” Kennedy wrote in his co-opinion with O’Connor and Souter.
“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment,” he said. “It declares that no state shall ‘deprive any person of life, liberty, or property, without due process of law.’ The controlling word in the cases before us is ‘liberty.’”
Kennedy went on to argue in this opinion declaring abortion a “right” protected by the Constitution’s vision of “liberty” that people had a right to “define one’s own…mystery of human life.”
“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,” Kennedy wrote. “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.”
Twenty-three years later, Kennedy wrote another highly significant opinion in Obergefell v. Hodges, which the court also decided 5-4.
This won declared same-sex marriage a constitutional right.
Kennedy argued in Obergefell that there really was no difference between two people of the opposite sex marrying one another and two people of the same sex marrying one another.
He further argued that recognizing same-sex marriage was good for children.
“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,” Kennedy wrote in his opinion for the majority in Obergefell. “This is true for all persons, whatever their sexual orientation. There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
“Marriage also affords the permanency and stability important to children’s best interests,” wrote Kennedy.
He argued that he did not see anyone disagreeing with this point.
“As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted,” wrote Kennedy. “And hundreds of thousands of children are presently being raised by such couples. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents.
“This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families,” said Kennedy.
“Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry,” he said. “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.”
Kennedy argued—on behalf of the one-vote majority his vote had ensured—that denying same-sex couples the right to marry was inconsistent “with the central meaning of the fundamental right to marry.”
“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest,” wrote Kennedy. “With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”
The same justice who preserved the right of women to abort their babies concluded that denying two people of the same-sex to marry would “diminish their personhood.”
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” said Kennedy.
In dissenting from the court’s opinion on this, Justice Clarence Thomas said that Kennedy’s argument rejected the very idea of liberty that the United States was founded upon.
“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built,” wrote Thomas in his dissent.
“Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits,” said Thomas. “The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect.
“Along the way,” Thomas said, “it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.”
Responding to Kennedy’s argument for the court’s 5-4 majority that same-sex marriage was a right, Justice Samuel Alito warned in his dissent that the court was taking America down a path where those with traditional views would see their freedom of conscience threatened.
“This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one,” said Alito. “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.:
“Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage,” Alito argued.
“The decision will also have other important consequences,” Alito said. “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
“Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected,” said Alito. “We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”