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Ginsburg, Kennedy, and Gay Marriage: Court's Leanings are Clear

By William Peacock, Esq. | Last updated on

This past spring, David Hagedorn made a big request of Justice Ruth Bader Ginsburg: he wanted her to officiate his wedding to Michael Widomski. He made the request after reading comments by the justice about how no one had ever asked her to preside over a same-sex marriage, likely because of fear that doing so would lead to calls for recusal in future Supreme Court cases, reports The Washington Post.

The request was met with deferral until after the term. On June 26, the day the Supreme Court addressed gay marriage in Windsor and Perry, Ginsburg accepted his request.

Justice Ginsburg also presided over another same-sex marriage earlier this month, at the Kennedy Center in Washington D.C. One of the grooms was her long-time friend Michael M. Kaiser. The other, coincidentally and ironically, is named John Roberts.

Ginsburg's Views Anything But Unclear

If presiding over two same-sex marriages less than three months after the court extended federal recognition to same-sex marriages in one case, and through issues of standing, brought gay marriage to California in another, isn't clear enough, Ginsburg's own characterization of the Defense of Marriage Act's unequal treatment of gay marriage may help. During oral arguments, she said there were "two kinds of marriage; the full marriage, and then this sort of skim-milk marriage."

Though she may have been concerned earlier about the appearance of bias in Supreme Court cases by accepting an invitation to officiate a wedding, her views are clear enough at this point that helping friends celebrate their union shouldn't provide any additional arguments for recusal.

Kennedy: Gay Rights Legacy Intact

Adam Liptak, writing for The New York Times, discusses the legacy of Justice Kennedy as a "surprising" friend of the gay rights movement. This characterization comes not only from Kennedy's general conservatism, nor from his background as a California Republican, but also from his multiple pre-Supreme Court opinions that went against gay rights.

Since then, he has thrice authored opinions that were friendly to the gay rights movement. In Romer v. Evans, he mocked a Colorado law, which banned laws protective of homosexuals,; as "at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board." In Lawrence v. Texas, he overturned precedent and struck down a Texas law that made sodomy (even as a consensual act) a crime.

And most recently, he authored United States v. Windsor, which struck down the part of the Defense of Marriage Act which denied federal benefits of marriage to legally-married gay couples.

As the swing vote on the court, Kennedy often decides where the court will go on landmark issues. Though he leans towards the right on most issues, his libertarian leanings on gay marriage may, in the end, overshadow the rest of his jurisprudence.

"What Earl Warren was to civil rights and what Ruth Bader Ginsburg was to women's rights, [Anthony] Kennedy is to gay rights," Professor Michael Dorf, a former Kennedy clerk told the Times.

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