Justice Kennedy Likens Gay Marriage Opposition to Flag Burning Case: Opponents Will Dissipate in 'Two or Three Months'
U.S. Supreme Court Justice Anthony Kennedy compared opposition to the court's landmark ruling ending legal opposition to same-sex marriage to a 1989 decision that said freedom to burn an American flag is protected speech.
It was Kennedy's first comments since last month's decision, Obergefell v. Hodges, that struck down a ban against same-sex marriage in 14 states. Kennedy believes that while the decision on the flag burning case was unpopular at first, public opinion changed over time.
He made the comments Wednesday at a 9th Circuit Conference in San Diego. Kennedy, 78, often seen as an important swing vote on the Court, is a native of Southern California who formerly ruled from the 9th Circut bench.
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"Eighty senators went to the floor of the Senate to denounce the court," declared Kennedy of the 1989 ruling. "President Bush took the week off and visited flag factories, but I noticed that after two or three months people began thinking about the issues."
Kennedy added a story about a World War II veteran and POW who carried a American flag with him in Europe and how he even came to turn around his opinion on the then controversial flag burning case. Kennedy said it took him six days to write the controversial opinion on marriage.
The Christian Post reached out to Josh Blackman, an associate professor at the South Texas College of Law, who provided a post he wrote concerning Kennedy's comments and added to CP, "If he [Kennedy] is comparing flag burning to same-sex marriage, he is really out of touch."
Blackman found most notable Kennedy's comments regarding spending and rebuilding the capital of trust, which he addressed in his post.
"We spend the capital of trust, and we have to rebuild that capital," declared Kennedy. "We have to put new deposits, new substance into this reservoir of trust."
Blackman asked, "So how do we read this? Is a decision invalidating marriage laws drawing on the trust deposit, requiring the court to 'rebuild that capital later' with some future case? Or is the decision invalidating marriage laws what 'rebuilds that capital' after it has been "draw[n]" down? If so, then what decisions are "draw[ing]" on that trust?"
Kennedy has been criticized by some conservatives and liberals in the past for thinking about political solutions and injecting politics into decisions rather than ruling with a consistent judicial philosophy.
In striking down the Defense of Marriage Act in 2013, Justice Antonin Scalia argued in his dissent that the majority opinion was classifying same-sex marriage opponents as an "enemy of the human race."
Scalia was also heavily critical of Kennedy's writing in his dissent of Obergefell, calling the reasoning "fortune cookie" logic. In terms of the implications for religious liberty, all four dissenting justices mentioned harmful implications for religious liberty resulting from the decision. Chief Justice John Roberts noted that the decision "creates serious questions about religious liberty." Associate Justice Clarence Thomas declared, "The majority's decision threatens the religious liberty our Nation has long sought to protect."
Kennedy, an associate justice, was appointed to the Supreme Court in 1988 by former President Ronald Reagan after the failed nomination of Robert Bork. In The New Yorker in 2005, legal analyst Jeffrey Toobin noted that Kennedy has written the "the two most important gay-rights-decisions in the Court's history."
Many conservatives seem to disagree with Kennedy's reasoning that controversy over the decision will dissipate. Presidenitial candidate Rick Santorum has compared the rulling to the Dred Scott and Plessy decisions. Heritage Action CEO Michael Needham, like many others, compared the decision to a controversial abortion decision: "This is judicial activism plain and simple — on par with Roe V. Wade."
