WASHINGTON Last summer, when asked how the U.S. Supreme Court might resolve the same-sex marriage dilemma, Justice Ruth Bader Ginsburg emphasized the potentially important yet unknown views of swing vote Justice Anthony Kennedy.
The court's senior liberal told Reuters in an interview that she would not hazard a prediction.
Referring to a pivotal 5-4 decision authored in 2013 by Kennedy that lower courts have invoked to endorse same-sex marriage, Ginsburg observed, "You know that there are two themes in Kennedy’s opinion: One about liberty and dignity (of same-sex couples). On the other hand, he talks about marriage being in the states' domain. Those don't point in the same direction."
On Monday, when the Supreme Court declared it would not take up a series of same-sex marriage appeals, the question was why.
One answer may be that neither the liberal nor conservative camps on the court knew with confidence where Kennedy, the likely key vote, might fall and did not want to risk a nationwide ruling against their respective interests.
The justices’ decision not to decide also may have reflected their memories of the passions stirred by the court’s 1973 ruling in Roe v. Wade that made abortion legal nationwide as states were considering related legislation. The ruling ignited a social and political backlash that persists to this day.
None of the nine justices offered any public comment on Monday with their orders spurning petitions testing a constitutional right to same-sex marriage. Kennedy, a 1988 appointee of Republican president Ronald Reagan who is the conservative most likely to shift to the liberal side, has been especially quiet about his views on the matter.
When asked by Reuters earlier this year about lower court decisions endorsing same-sex marriage based on his opinion in the case of United States v. Windsor, he said he had not been following all the developments on the issue.
Lower court judges endorsing gay marriage have emphasized Kennedy's words about the "dignity" of gay couples and the need for them to receive the same treatment as opposite-sex unions. Lower courts have not latched onto his words about federalism interests that might shield states from federal intervention on their marriage laws.
THE CRUCIAL FIFTH VOTE
Kennedy represents more than the crucial fifth vote on looming social policy dilemmas. He has taken the lead on gay-rights cases since 1996, when he wrote the decision striking down a Colorado initiative that forbade local anti-bias laws to protect gay people.
In his 2013 decision in the Windsor case extending federal benefits to same-sex married couples, Kennedy wrote that the Defense of Marriage Act’s restriction had effectively told “those couples and all the world, that their otherwise valid marriages are unworthy of federal recognition.”
It was a cautious, limited decision that demonstrated the court’s lack of interest in tackling the larger constitutional question.
Court observers predicted the justices would be ready this term to confront the constitutional question of gay marriage after nearly 40 lower-court decisions declaring same-sex marriage a right. But appeals courts were not divided on the issue and Ginsburg suggested in a speech last month that perhaps the justices were waiting to see if any split developed.
Such a division may yet emerge, as several other U.S. appeals courts, including the Cincinnati-based 6th Circuit, are weighing same-sex marriage rights.
The justices may be conflicted, trying to balance what they see as growing support of gay marriage with the need to move cautiously on the law. Recent public opinion polls have shown support for gay marriage at slightly over 50 percent.
"I've never seen social change come so fast," Ginsburg told Reuters in the July interview. "This is different from race, where there was such a marked separation. People lived in communities that were white or black. Here, it’s your neighborhood, your child. People see (gay people emerging) in their own community."
Ginsburg has been among the justices who have noted the backlash the court experienced after Roe v. Wade. She has often observed how Roe’s sweeping rational cut off state action and became a “rallying point” for the anti-abortion rights movement.
Other justices have not been so revealing of their thoughts. Kennedy scoffed earlier this year at the notion that he is the man in the middle of an ideologically divided court. Asked if he finds it strange that lawyers routinely say his is the vote to win, Kennedy responded, "I do," adding somewhat sheepishly, “But I think that’s over-stated.”
(Reporting by Joan Biskupic; Editing by Will Dunham)