The Kennedy doctrine: moral disagreement and the "bare desire to harm".

• Author: Gallagher, Maggie
• Position: US Supreme Court Justice Anthony Kennedy

Is there a distinctive Kennedy Doctrine in Fourteenth Amendment jurisprudence?

We believe so.

True, it is not clear who else on the Supreme Court adheres to the Kennedy Doctrine aside from Justice Anthony Kennedy himself: In the substantive analysis of United States v. Windsor, (1) Justice Kennedy cited six Supreme Court precedents, three of which he authored, (2) and one decision out of the First Circuit Court of Appeals. (3)

The Kennedy Doctrine, as it has emerged in a series of opinions drafted by Justice Anthony Kennedy culminating in the Windsor decision striking down the Defense of Marriage Act (4) ("DOMA"), represents a startling conceptual departure not only from constitutional theories of limited government and textual originalism, but from standard equal protection jurisprudence as well.

In Windsor, Justice Kennedy abandoned the established standard equal protection doctrine, which defines a small set of protected classes for special scrutiny. He declined in other words to decide that sexual orientation is now a protected class requiring strict scrutiny, and then apply standard equal protection doctrines to his legal analysis. Under standard equal protection analysis, the classes that may receive (in this sense) unequal or "heightened" Constitutional protection are cabined by requiring the class shows a combination of (1) a history of legal marginalization for (2) the unchosen and largely unchangeable nature of the category of people affected.

Instead of using this framework, Justice Kennedy set sail into the uncharted territory of a new doctrine suggesting that "unusual" new legislative acts must be scrutinized for their effects on the human dignity of minorities. As Justice Kennedy wrote in Windsor:

In determining whether a law is motived by an improper animus or purpose, "[d]iscriminations of an unusual character" especially require careful consideration. DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State's classifications have in the daily lives and customs of its people. DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. (5) In this hallmark passage of the Kennedy Doctrine, Justice Kennedy treats the moral concerns of the majority as the equivalent of animus; in other words, he translates moral disagreement into the "bare desire to harm," as Justice Scalia noticed:

The sum of all the Court's nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ""bare ... desire to harm'" couples in same-sex marriages. (6) The Kennedy Doctrine thus conceptually defines animus upwards, and in a way, we argue, which intensifies rather than defuses the winner-take-all aspect of the moral conflicts over gay marriage in American society.

With the advent of the Kennedy Doctrine, the law's failure to affirm all values equally (at least in any "unusual" law recently passed) becomes the equivalent of stigmatizing those values not actively affirmed by law.

The Kennedy Doctrine collapses the negative and positive poles of moral community. The absence of equal affirmation is the presence of stigmatization. For the government to uphold that the family ideal is a mother and a father is the equivalent of the government stigmatizing gay people as bad parents.

In this scheme, there is one moral value alone that becomes the trump card, the moral value that says we must affirm all life choices equally unless those choices involve direct measurable harm to others (although this classical liberal underpinning is more assumed than articulated). (7) Indeed, in this conceptual universe the difference between a liberty interest and an equality interest almost collapses, since it suggests the right to define the mystery of one's life must also mean the right not only to act on it equally with other citizens, but to have those life choices equally esteemed at least by law. (8)

The difference between a desire to harm and a desire to affirm, between the wish to punish and the impulse to idealize, becomes invisible in this constitutional ideology.

Let us here state what is probably obvious: gay people have experienced a great deal of animus in our society, and incivility, and open hatred, and sometimes violence. It is quite likely that some people who supported DOMA did so at least partly out of animus, classically understood. But, under the Kennedy Doctrine, the desire to protect a traditional moral understanding of marriage became in itself animus. (9) The effects of the law became the motivations of the lawmakers, by Justice Kennedy's doctrinal redefinition.

Justice Kennedy's Lawrence v. Texas (10) decision began with this description of the right involved: "Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." (11) Later, Justice Kennedy wrote: "adults may choose to enter upon [a sexual] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." (12) The opinion said, referring to the defendants, that the sodomy law "demean[s] their existence." (13) He was speaking here, not just of the practical effects of criminality on the defendant's lives and rights, but of a new concern for their moral feelings. And this concern did not, it turns out (as Scalia accurately predicted) (14) rest upon the obvious stigmatizing effect of criminalizing gay sexual relations.

In Windsor, Kennedy rests much of his case on the moral meaning of marriage, which he sees as conferred by the State. In Windsor, Justice Kennedy wrote:

Here the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. "[Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." (15) It is hard to see how to cabin in a principled way such a "human dignity" provision to the U.S. Constitution, especially if defining marriage as one man and one woman is viewed as "departing from" our "history and tradition." (16)

DOMA's definition of marriage was consistent with the definition of marriage in all fifty states when it was passed; (17) it is the traditional and historic definition of marriage. Moreover, federal defenses of this definition of marriage, or intrusions into state family law, are not new.

The federal government went to fairly extraordinary lengths to stamp out polygamy in the nineteenth century, (18) to give just one example, and has conditioned federal money on states altering their family law to suit the federal government's priorities, (19) to give another.

Since virtually all laws with any kind of practical impact single out a minority for differential treatment in either giving or withholding of some benefit or penalty, it is hard to understand what recently passed law could not, if Justice Kennedy so preferred, provoke the under-defined heightened constitutional scrutiny of the Kennedy Doctrine's human dignity provisions. For example, is imposing tax penalties on the minority of people who choose not to buy health insurance departing from our history and tradition? And if so, by what standard do we judge whether or not such actual civil penalties detract from the human dignity of those mostly lower income Americans so singled out for unequal punishment?

Justice Kennedy will know it when he sees it.

But the Kennedy Doctrine so understood poses a challenge not only to clearly defined constitutional limits on the Court's powers, but to the idea of pluralism in a democratic society. It is this latter feature of the Kennedy Doctrine and its impact on dissenters to the Court's views on same-sex marriage that is our principal concern here.

One of us is a lawyer, a legal participant who has watched the legal debate unfold, helping craft countless briefs both to state courts and to federal courts over the last fifteen years to make the case for the rationality and constitutionality of the traditional understanding of marriage. The other of us writes not as a legal scholar but as an acute observer and participant in this intellectual and political debate on the nature, meaning, and public purpose of marriage, as well as the status in the public square of those who adhere to classic understanding of marriage.

Our goal in engaging in this public debate is "achieving disagreement" (20) to make intelligible to the majority of elite and academic commentators the concerns of millions of Americans who hold the increasingly judicially-disfavored view that marriage is intrinsically--that is by its nature--a union of husband and wife.

In this great task of doing the first work of democracy, understanding one another where we disagree on deeply held moral values, Justice Anthony...