July 3, 2018 at 2:16 pm EDT | by Chris Johnson
Attorneys who argued gay rights cases reflect on Kennedy legacy

From left, Jean Dubofsky, Paul Smith, Roberta Kaplan and Mary Bonauto (Photo of Dubofsky courtesy of Dubofsky, Washington Blade photos of Smith, Kaplan and Bonauto by Michael Key)

U.S. Associate Justice Anthony Kennedy is stepping down from the U.S. Supreme Court after writing four milestone cases in favor of gay rights over the course of his 30 years on the bench.

The Washington Blade contacted the attorneys who argued each of those cases — Romer v. Evans in 1996, Lawrence v. Texas in 2003, U.S. v. Windsor in 2013 and Obergefell v. Hodges in 2015 — for their reflections on those decisions and LGBT rights in the aftermath of Kennedy’s retirement.

Here are their responses:

Romer v. Evans — Colorado’s Amendment 2 is unconstitutional because bare animus cannot justify anti-gay measures

Kennedy: “Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.”

Former Colorado Supreme Court Justice Jean Dubofsky (Photo courtesy of Dubofsky)

Attorney: Jean Dubofsky, first female justice in 1979 appointed to the Colorado Supreme Court and the youngest person ever appointed to the court at 37. She later returned to private practice and led the legal team against Amendment 2.

What was the significance of Kennedy’s opinion in Romer to the advancement of LGBT rights?

Dubofsky: When Justice Kennedy asked the first question in the Romer v Evans argument: Has there ever been a law (he was referring to Amendment 2 to the Colorado Constitution, which prohibited any remedies for discrimination on the basis of sexual orientation) as bad as this? I knew that we had a chance of winning. Until then there was no precedent that supported gay rights. It’s not surprising, given no precedent, that Justice Kennedy’s opinion did not follow customary equal protection analysis. Romer became the starting point for the gay rights cases that followed.

Now that Kennedy has announced his retirement, to what extent is his legacy on LGBT rights in danger?

Dubofsky: I’d be surprised if Romer and its progeny are overturned. (Chief Justice Roberts, then an attorney in private practice, helped me prepare for the argument). Protection for religious expression, however, may allow those who provide services for gay weddings to discriminate.

Lawrence v. Texas — state laws criminalizing intimate relations for same-sex couples are unconstitutional

Kennedy: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

Paul Smith (Washington Blade photo by Michael Key)

Attorney: Paul Smith, who argued the case for Lambda Legal on behalf of John Geddes Lawrence Jr. and Tyron Garner, now a faculty member at Georgetown University Law Center

What was the significance of Kennedy’s opinion in Lawrence to the advancement of LGBT rights?

Smith: Lawrence was central to the achievement of further advances for LGBT rights. First, it eliminated the sodomy laws, which were excellent instruments of oppression because they made it difficult for people to live as gay men or lesbians out in the open in some states.

Second, it eliminated the odious decision in Bowers v. Hardwick, which upheld sodomy laws in 1986 and which undercut almost any constitutional argument that could be made in favor of LGBT civil rights under the Constitution.

Finally, the way Justice Kennedy wrote the Lawrence opinion made it a springboard toward legal recognition of same-sex relationships. He made clear that our relationships have the same value and play the same role as different-sex relationships. He also established firmly that the government has no right to make moral judgments condemning individual choices about what kind of relationship or family to form. In our free society, those are choices individuals get to make.

As Justice Scalia noted in his dissent in Lawrence, those two moves made it difficult to oppose claims to marriage equality. Our opponents struggled for the next 12 years to explain why same-sex couples could be excluded from marriage, once they could no longer offer up the kind of moral arguments that Lawrence forbade.

Now that Kennedy has announced his retirement, to what extent is his legacy on LGBT rights in danger?

Smith: I would anticipate that the new Court will be supportive of claims like that made in Masterpiece Cakeshop for individual private exemptions from state or federal laws banning anti-gay discrimination.

I would be surprised, however, if the Court were to overrule Obergefell and authorize states to refuse to marry more same-sex couples. Marriage equality is too ingrained in our national understanding of fairness and justice. But we should be watchful nonetheless.

United States v. Windsor, Section 3 of the Defense of Marriage Act, which barred federal recognition of same-sex marriage, is unconstitutional

Kennedy: “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

Roberta Kaplan speaks at a press conference in 2013 on the steps of the U.S. Supreme Court. (Washington Blade photo by Michael Key)

Attorney: Roberta Kaplan, who argued the case on behalf of New York widow Edith Windsor, now founding partner at Kaplan & Company LLP.

Editor’s Note: The Blade submitted questions to Kaplan on the significance of the Windsor decision in the aftermath of Kennedy’s retirement, but she declined to provide responses before deadline.

Obergefell v. Hodges, state laws barring same-sex couples from obtaining marriage licenses and prohibiting recognition of those marriages are unconstitutional

Kennedy: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.”

Mary Bonauto following the Obergefell decision. (Washington Blade photo by Michael Key)

Attorney: Mary Bonauto, civil rights project director at GLBTQ Advocates & Defenders who argued the case on behalf of Ohio widower Jim Obergfell and other plaintiffs

What was the significance of Kennedy’s opinion in Obergefell to the advancement of LGBT rights?

Bonauto: Obergefell is significant on many levels. In practical terms, it says the constitutional right to marry includes LGBT people’s aspirations to marry the person of their choice. There are no “skim milk” marriages: The same “constellation of benefits” and responsibilities government allocates to others must be available to married same-sex couples.

Ideas of liberty and “central precepts of equality” both animate the ruling. The Court’s reasoning extended beyond the concrete protections of marriage to talk about the “grave and continuing harm” and “disrespect and subordination” imposed on LGBT people vis-à-vis others by our exclusion from marriage. That powerful insight is both a sword and shield to attack laws and proposals to degrade us, our families and marriages.

With “equal dignity in the eyes of the law,” Justice Kennedy’s rulings have helped make meaningful changes in LGBT people’s lives, enabling us to live more openly and moving us closer to equal citizenship.

Now that Kennedy has announced his retirement, to what extent is his legacy on LGBT rights in danger?

Bonauto: Justice Kennedy’s legacy will be a lasting one in part because he modelled what Justice Ginsburg described in 1996 – the story of our Constitution is one of including those who had formerly been excluded.

Every generation may search for meaning and refuge in the enduring promises of liberty,
equality, and due process, and so he listened to LGBT people who had been “outlaw[s]” and “outcast[s].” In Romer, then more boldly in Lawrence, Windsor and Obergefell, Justice Kennedy saw LGBT people as part of the “us” in our nation. The common humanity of LGBT people is irreversible.

Justice Kennedy rejected government attempts to impose double standards on LGBT people
when discrimination was framed up as objections to gay people’s conduct, rather than
gay people’s status, by correctly seeing them as the same.

I believe the four rulings are solid, and Obergefell even explained why marriage is a fundamental right and established access to and treatment of marriages as an equality issue.

But this part of his legacy will be tested repeatedly, as we already face attempted service refusals by businesses and new limits on LGBT peoples’ ability to adopt and foster children. Even as powerful people take aim at marriage in both the short and long term, one of our community’s legacies throughout the time of Justice Kennedy’s career is a commitment to engagement on LGBT and other civic issues, and to the political process at every level.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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