“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.”
That final paragraph of the landmark ruling was again remembered and repeated Wednesday, as Kennedy revealed his decision to retire from the court. Those who savored those words also fretted over whom President Trump would appoint to replace Kennedy in a palpable expression of the significance of Kennedy’s legacy, especially to those in the LGBTQ community.
“Justice Kennedy literally transformed the lives of lesbian, gay and bisexual people in America,” said James Esseks, director of the American Civil Liberties Union’s LGBT and HIV Project. “He transported us from criminals in the eyes of the law to having the freedom to marry the people we love most in the world. There are few civil rights journeys as sweeping or as fast, and Justice Kennedy was a key part of that.”
The 81-year-old justice, who has served on the court since 1988, was the author of the majority opinion on four key cases that transformed gay rights in America.
The first was Romer v. Evans in 1996, when the justices struck down a Colorado law that prevented gay people from being recognized as a protected class.
“If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,” Kennedy wrote in his decision.
That ruling paved the way for Lawrence v. Texas, the 2003 decision that made sex between gay couples legal across the country, even in those 13 states that still had sodomy laws on the books.
“When we think about these issues at a time when we have marriage equality it may be hard to believe that states criminalized the sexual intimacy of gay people into the 21st century,” said Suzanne B. Goldberg, a professor at Columbia Law School who represented the men involved in the Romer and Lawrence cases. “Sodomy laws caused enormous damage to the lives of gay people because they were used in employment, in family law and in other settings to justify discrimination.”
Ten years later came United States v. Windsor, the case that struck down the Defense of Marriage Act, which interpreted the term “marriage” to apply only to unions between a man and a woman. The statute meant that Edith Windsor, who had married her partner in Canada, would have to pay taxes on her wife’s estate because the federal government did not recognize the woman to be her spouse.
Kennedy declared that such a statute had “no legitimate purpose.”
These decisions, though lesser known than the marriage decision, are no less significant, gay rights advocates say. Without them, “We never could have gotten to a place where a majority of Americans embraced marriage equality,” said Sarah Warbelow, legal director for the Human Rights Campaign.
As she spoke of her gratitude for Kennedy’s legacy Wednesday, Warbelow, who is bisexual, began to cry.
“His ability to see our dignity and humanity that has carried through all the decisions, to see LGBTQ people for who they are, led to us being included in the broader fabric of this country,” she said.
For years, admirers have speculated about how Kennedy came to such views. Many point to his roots in California, where he developed a friendship or mentorship with Gordon Schaber, who was once the dean of Sacramento’s McGeorge School of Law at the University of the Pacific. In the 1960s, Schaber recruited Kennedy, then a young lawyer, to teach at the school, according to the Associated Press. The AP interviewed a dozen people who knew Schaber, who died in 1997, and reported that he was widely believed to be gay.
The story of Kennedy’s “closeted gay mentor” was published as the country was awaiting a decision in Obergefell v. Hodges in 2015, the case that would ultimately make same-sex marriage legal in every state.
Janson Wu, the executive director at GLBTQ Legal Advocates and Defenders (GLAD) was in the courtroom on the day of the decision. When his team saw that it was Kennedy who would be reading the majority’s decision, they were hopeful, but not entirely certain.
Kennedy’s record is not spotless in the eyes of advocates. Before he became a Supreme Court justice, he ruled in favor of the Navy being allowed to discharge gays. In 2000, he sided with the conservative justices who held that the Boy Scouts of America could ban gay adults from being scoutmasters.
But the very first sentence of Kennedy’s decision quelled Wu’s fears: “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.”
“I felt my heart just leap for joy,” Wu said. “It reminded me that the power of the law is not just to change the law but also to move people’s hearts.”
That change of heart is reflected in surveys of Americans’ values: In 1994, two years before Romer v. Evans, 49 percent of Americans said homosexuality should be discouraged by society, according to the Pew Research Center. In 2017, 70 percent said it should be accepted.
Though those opinions now feel deeply entrenched to many, the news of a Supreme Court vacancy gave Obergefell a deep sense of uneasiness. He saw the news of Kennedy’s retirement while scrolling on Facebook. Asked how he felt in that moment, he said, “My first reaction isn’t fit to print.”
He found himself thinking of the five weddings he is planning to officiate later this year. He still plans to bring Kennedy’s words along.
“I will read those words tinged with fear and concern,” he said. “It’s going to scare me when I read them and wonder how much longer they will actually apply.”