WASHINGTON For more than two decades, the defining battles within the Supreme Court over social and moral controversies have been fought between two Catholics appointed by President Ronald Reagan.
Justice Antonin Scalia believes the law can and should enforce moral standards, including criminal bans on abortion and on “homosexual conduct” that many “believe to be immoral and destructive.”
Justice Anthony Kennedy is a libertarian conservative who believes the Constitution protects the freedom of individuals to “make personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.”
Now the ideological fight between the conservative giants is set for another round. The two 76-year-olds are to some extent likely to be on opposite sides this spring when the justices meet to decide whether the government can refuse marriage and federal benefits to gays and lesbians.
The two have much in common. Born in 1936, they graduated from high school in the early 1950s and excelled at Harvard Law School, where they were a year apart. They were Republicans who rose through the legal ranks. When appointed to the court, both bought homes in McLean, Va.
They agree on much. Both voted to strike down President Barack Obama’s health care law as an overreach by the government. Scalia joined Kennedy’s majority opinion in the Citizens United case that freed corporate and union spending on political ads.
But Kennedy, the libertarian, and Scalia, the social conservative, clash fiercely over the court’s role in deciding moral controversies.
The two split 20 years ago when the court’s conservative bloc was poised to overturn Roe v. Wade, the ruling that legalized abortion. Although personally opposed to abortion, Kennedy switched sides in spring 1992 and cast a crucial vote to uphold a woman’s right to choose. “Our obligation is to define the liberty of all, not to mandate our own moral code,” Kennedy wrote.
In the past, Scalia has accused Kennedy of having “signed on to the so-called homosexual agenda.” Scalia is likely to have the votes of fellow conservatives Clarence Thomas, Samuel Alito and probably Chief Justice John Roberts Jr. to uphold state and federal laws that exclude gays from marriage.
But Kennedy has the much stronger hand. He ranks third in seniority after the chief justice and Scalia, and he has four liberal justices on his left. Because the senior member of the majority decides who writes the opinion, Kennedy could decide who writes the opinions if he votes with the liberals. And he could take the assignment for himself.
His past writings offer clues to how he will lean.
In a New York case, the justices will decide whether the federal government can deny legally married same-sex couples the benefits that go with marriage. They include filing joint tax returns and receiving survivors benefits from Social Security.
Gay rights advocates challenged this exclusion in the Defense of Marriage Act as discriminatory, and they have won rulings from judges in New England, New York and Northern California.
Kennedy is likely to agree with the challengers, and he explained why in 1996, the same year Congress passed DOMA. The court then faced a Colorado voter measure that repealed gay rights ordinances in several cities. Kennedy spoke for the court in striking it down. The measure was “born of animosity” toward gays, he said, and the Constitution “prohibits laws singling out a certain class of citizens for disfavored legal status or general hardships.”
If Kennedy and the court strike down the federal benefits provision of DOMA, it would be a major victory for gay rights, but it would not affect the 41 states where same-sex marriage is forbidden.
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