Since the retirement of Justice Sandra Day O’Connor in 2005, Justice Anthony Kennedy has been the most important swing vote on the Supreme Court, especially in constitutional litigation. Because of this, Supreme Court advocates often attempt to secure his vote by filing briefs which discuss his prior opinions in detail. In this post, I suggest that the key to Justice Kennedy’s decision-making resides in his views of human dignity and the value of human life, concepts rooted in both his conservative/libertarian judicial philosophy and his Roman Catholic religion. As I have documented in my book, Faith of Our Fathers: An American Catholic History (2012), these concepts are repeatedly invoked by Kennedy in his opinions on gay rights, the Eighth Amendment, criminal sentencing, conditions of imprisonment, and abortion, and surfaced most recently in his seminal opinion of the court in United States v. Windsor (June 26, 2013).
United States v. Windsor
Section 3 of the federal Defense of Marriage Act (DOMA) defined “marriage” for purposes of more than 1000 federal laws to exclude same-sex partners from the benefits and burdens of those laws. By a five-to-four margin, Justice Kennedy’s opinion of the court held that this provision of DOMA was unconstitutional under the Fifth Amendment as applied to same-sex spouses whose marriages were lawful under the applicable state law.
Justice Kennedy’s opinion is a curious and confusing mix of concepts of federalism, equality, and dignity, and, in my view, deliberately leaves open a number of very important questions, including whether a state can constitutionally ban same-sex marriages and what standard applies by which to judge laws prohibiting or restricting same-sex marriage.
While the majority opinion does contain passages which reflect what Justice Alito referred to as “whiffs of federalism,” it also invokes concepts of human dignity and equality throughout the opinion. For example, Justice Kennedy explains that a State’s “decision to give this class of persons [same-sex couples] the right to marry conferred upon them a dignity and status of immense import.” Moreover, in referring to those states which have permitted same-sex marriage, Justice Kennedy notes that “the State acted to give [same-sex couples'] lawful conduct a lawful status. This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”
In addition, Justice Kennedy refers to a “stigma” placed by DOMA on same-sex spouses. He states that “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Indeed, the majority opinion sees DOMA as a statute which “writes inequality into the entire United States Code,” including “laws pertaining to Social Security, housing, taxes, criminal sanctions, copyright, and veterans’ benefits.” As such, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”
Finally, DOMA is characterized as creating “second-tier” marriages for gay people, by which it “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.”
Lawrence v. Texas and Gay Rights
Justice Kennedy’s opinion in Windsor cites and repeats much of what he said in Lawrence v. Texas (2003), which was decided exactly ten years before Windsor. Lawrence struck down a Texas criminal statute which prohibited homosexual sodomy. Justice Kennedy’s majority opinion in that case found that criminalization of such conduct was unconstitutional because homosexuals had a protected liberty right to express their sexuality. Kennedy explained that “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
As in Windsor, Justice Kennedy characterized the statute in question, which made private homosexual intercourse criminal, as placing a “stigma” on gay people, and saw criminalization as having significance “for the dignity of the persons charged.” In his view, criminalizing “intimate [gay] conduct” “demeans the lives of homosexual people.”
Cruel and Unusual Punishment under the Eighth Amendment
Justice Kennedy’s reliance upon the concept of human dignity appears frequently in his opinions in the area of criminal punishment. First, and most notably, he invokes the concept to support his view that the death penalty may not constitutionally be imposed on juvenile offenders or on perpetrators of non-homicide crimes, including the rape of minors, because of the Eighth Amendment’s prohibition on the imposition of cruel and unusual punishments.
In the nineteeth century, the Eighth Amendment was interpreted by the Supreme Court only to prohibit certain barbaric methods of punishment which involved either torture or a lingering death. That interpretation was expanded in Weems v. United States (1910), in an opinion for four members of the court written by Justice Joseph McKenna. McKenna’s opinion broadened the scope of the Eighth Amendment prohibition to include punishments which were deemed to be excessive or disproportionate to the offense committed. Weems dealt with the conviction of a Coast Guard official in the Philippines who was involved in a minor falsification of documents, for which he was sentenced to fifteen years imprisonment “at hard and painful labor,” was compelled to “always carry a chain at the ankle, hanging from the wrists,” and was prohibited from receiving any “assistance whatsoever from without the institution.” These, and certain other “accessory penalties,” were considered unconstitutionally cruel and unusual in McKenna’s opinion because they were “tormenting,” oppressive, and of a nature which deprived the prisoner of ”essential liberty.” In McKenna’s words, “No circumstance of degradation is omitted.”
By the time of Kennedy’s opinions discussed here, the approach taken by McKenna in Weems had been expanded and utilized to strike down several other punishments as constitutionally excessive. In Graham v. Florida (2010), the Supreme Court held that the Eighth Amendment was violated by the imposition on a juvenile of a sentence of life imprisonment without the possibility of parole for a non-homicide crime. In the majority opinion, Justice Kennedy explained that the prior line of cases starting with Weems embodied a “moral judgment,” and reflected “the essential principle that, under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes.”
Kennedy relied upon the same Eighth Amendment authority in two of his previous majority opinions, which respectively declared unconstitutional the imposition of the death penalty on individuals who were eighteen or under at the time of the crime (Roper v. Simmons (2005)), and imposition of the death penalty on child rapists of any age where the crime had not resulted in death (Kennedy v. Louisiana (2008)). In Kennedy v. Louisiana, Justice Kennedy explained that “Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.” In addition, in Kennedy’s view, imposition of the death penalty poses a threat that the law will experience a “sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.” Decency, in turn, “in in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.”
Other Criminal Justice Issues
Justice Kennedy has also found Eighth Amendment violations arising from the terms and conditions of imprisonment. In Brown v. Plata (2011), his majority opinion for the Supreme Court concluded that “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” This is so because “Prisoners retain the essence of human dignity inherent in all persons.”
Justice Kennedy also dissented from an interpretation of the federal sentencing statute in Barber v. Thomas (2010). The majority interpreted that statute to increase the time of imprisonment for almost 200,000 prisoners. Kennedy explained that he would construe the sentencing statute in such a way as to implement its statutory purpose, which he concluded was to give prisoners an “incentive for good behavior and dignity from its promised reward.”
In his opinions on abortion, Justice Kennedy has acknowledged a constitutional right for women in making reproductive decisions, but has also upheld limitations upon the exercise of that right. In Planned Parenthood v. Casey (1992), he angered conservatives by helping to write the lead plurality opinion which declined to overrule Roe v. Wade, while at the same time embracing a more conservative standard of “undue burden” for deciding the constitutionality of legislative restrictions on abortion.
In the present context, however, his most significant abortion opinions involved the constitutionality of statutory bans on the procedure known as partial birth abortion, which Kennedy described in gruesome detail in both his dissenting opinion in Stenberg v. Carhart (2000) (the fetus “bleeds to death as it is torn limb from limb”) and in his majority opinion in Gonzales v. Carhart (2007) (“the fetus is killed just inches before completion of the birth process.”) In concluding that both states and the federal government could ban the use of this procedure to terminate a pregnancy, Kennedy focused upon the absence of any “respect for life” in the process. Without such a ban, both “the medical profession or society as a whole” might “become insensitive, even disdainful, to life, including life in the human fetus.” (Stenberg). In Gonzales, Kennedy characterized the partial birth abortion process as ”a procedure itself laden with the power to devalue human life.” He pointed out that “Congress determined that the abortion methods it proscribed had a ‘disturbing similarity to the killing of an unborn infant’.”
The Concept of Human Dignity
As both Frank Colucci and I have previously pointed out, Justice Kennedy’s jurisprudence reflects in part the influences of his Roman Catholic religion. In Catholic social justice teaching, for example, the concept of human dignity plays a pivotal role. Thus, the Catechism of the Catholic Church declares that “Social Justice can be obtained only in respecting the transcendent dignity of man. The person represents the ultimate end of society, which is ordered to him…. Respect for the human person entails respect for the rights that flow from his dignity as a creature.”
Whatever its sources, the concept of human dignity plays an important role in Justice Kennedy’s decision-making process in constitutional adjudication. As such, appellate advocates seeking Justice Kennedy’s vote would do well to consider how human dignity or the value of human life may be demeaned or endangered by a law those advocates are challenging.
Frank J. Colucci, Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty (University Press of Kansas, 2009).
Edward F. Mannino, Faith of Our Fathers: An American Catholic History (WingSpan Press, 2012), 123-129.
Edward F. Mannino, Shaping America: The Supreme Court and American Society (University of South Carolina Press, 2009), 257-262.