Whence Liberty? The Retirement of Anthony Kennedy

Whence Liberty? The Retirement of Anthony Kennedy

On June 27, 2018, at the end of Pride month, I was visiting my family in my childhood home. My wife texted me to tell me that Justice Anthony Kennedy retired. The night before, I had heard on CNN (always on in this house) that he might retire, but I hadn’t really allowed myself to think about it.

I am a feminist. I am a lesbian. I have been fighting for rights for most of my life, starting in the small, rural New England town where I grew up. In my teens, I spoke out against my classmates’ racism. I advocated for a girls’ basketball coach who actually could play and coach rather than the male science teacher who didn’t know the game. I hadn’t thought much about my own sexuality — stuck in the cooties stage longer than most — but I listened kindly when others talked to me about the sexuality of their friends or family members.

I went to college in 1984. In 1986, I dropped out of college and moved to San Francisco where I became exposed to and involved in a range of activist organizations. In 1987 I attended the March on Washington for Lesbian and Gay Rights. The march had an intersectional platform that started with a call for legal recognition of our relationships, concluded with a demand for an end to racism in our own country and apartheid in South Africa, and included “an end to sexist oppression.” I was part of an affinity group that protested in front of the Supreme Court because of Bowers v. Hardwick, when the Court decided that it was perfectly constitutional for police to arrest men engaged in consensual sex at home.

I list all of these things as setting. I grew up and came of age in a world with oppressive laws and rulings, and I became convinced that one of my roles in that world was to resist those oppressive laws and rulings.

President Reagan, Anthony Kennedy, Mary Kennedy and William Rehnquist at the swearing in ceremony for Judge Anthony Kennedy as Associate Justice of the United States Supreme Court in the East Room.
The swearing-in ceremony for Judge Anthony Kennedy as Associate Justice of the United States Supreme Court, 1988. (US National Archives/Ronald Reagan Presidential Library & Museum)

When Anthony Kennedy was nominated as a Supreme Court Justice in November 1987, and when he was confirmed by the Senate in February 1988, like all of my friends I was extremely nervous. He was, after all, a conservative and a Ronald Reagan nominee. It was, after all, the 1980s. My friends were dying from AIDS and the government still wasn’t doing anything about it. Children were being taken away from lesbian and gay parents, and the courts were upholding those decisions. We could not see a light at the end of the legal tunnel, and I certainly could not believe Kennedy would be one of the people providing a light.

Kennedy surprised me. Not always, and not on every issue, but when it came to rights for LGBTQ Americans, he came down on the side of legal and constitutional protection. On May 20, 1996, in Romer v. Evans, the U.S. Supreme Court ruled that Colorado’s 1992 anti-LGBTQ initiative, Amendment 2, was unconstitutional. Kennedy wrote the majority opinion, stating that Amendment 2 was “at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” For the first time, the U.S. Supreme Court had made a ruling that affected LGBTQ people positively, and Kennedy, the man I did not trust, had landed on our side.

Then, in 2003, the court decided in Lawrence v. Texas that sodomy laws were unconstitutional. Kennedy again delivered the majority opinion, writing:

[gblockquote]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.[/gblockquote]

This man, a Reagan appointee, had looked at these discriminatory laws through the lens of constitutional interpretation and had determined that they went against the very principles of the United States of America as embodied in the Constitution. These decisions didn’t solve everything, but they were enough to make me and many of my friends believe that in our lifetime we might be protected by, rather than discriminated against, through laws and the Court’s interpretations of those laws.

That protection helped us see the possibility for change, gave us victories rather than defeats. It made us believe that conservative people, people like many of our parents, for instance, wouldn’t always consider us as deviants or sinners. The protection allowed more LGBTQ people to come out of the closet, to share their lives with neighbors and coworkers rather than keeping it hidden away. It helped push the country toward acceptance of marriage for same-sex partners, and in 2015 Kennedy again delivered, writing in the Obergefell v. Hodges decision:

[gblockquote]The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.[/gblockquote]

In each of these cases, Justice Kennedy helped shape the opinion of the Court, and, therefore, the opinion of the country. I had always hoped that, when it came time for Kennedy to retire, we would see a less conservative justice confirmed. In this political climate, the only certainty seems that the nominee will be someone committed to purging the hard-won civil rights of LGBTQ Americans and ending access to legal and safe abortion, among other things.

“I don’t think the court can be fixed in my lifetime. Or yours, either, of course,” was one of the texts I received from my wife. It is a grim sentiment, but one I know is shared with my friends and allies. We have been losing ground as Republicans in the legislative branch have refused to provide a check on an erratic and powerful executive.

And now, the judicial branch at the highest level will also refuse to provide a check on an erratic and powerful executive. Things are likely to get even worse from here as Trump consolidates his power and as the voices and bodies of those who resist are threatened and silenced. However, history tells us that the only thing we can do is be brave enough to continue to resist, to refuse to be silent even when that refusal puts us in danger.

I think of all the organizations I have taught about over the years, from the Mattachine Society that staged some of the first protests in this country for LGBTQ equality to the Jane Collective that worked to provide women with safe and affordable access to abortions. We do not need to reinvent the wheel.

Instead, as our country’s leadership turns back the clock, we can find models for what worked in the days before LGBTQ people had rights and when abortion was illegal. While we had hoped we did not have to go back to those tactics and strategies, in many cases, those tactics and strategies have already been laid out for us. It is time to call on history and social memory and lay the groundwork for these new or revitalized organizations while we still have some protections left.

Featured image caption: Photo of US Supreme Court building. (Courtesy zacklur/Flickr)

Sarah Swedberg is a Professor of History at Colorado Mesa University and a lifelong activist.