When longtime friend Gordon Schaber pushed for Justice Anthony Kennedy’s Supreme Court appointment in 1987, he may have foreseen Kennedy’s role in the advancement of gay rights nationwide.
SACRAMENTO, Calif. — In the fall of 1987, a package arrived on the desk of Laurence Tribe, a Harvard law professor who had just lost a Supreme Court case on gay rights. It contained the legal opinions of Anthony Kennedy, a strait-laced, conservative Republican jurist from Sacramento who hardly seemed sympathetic to that cause.
The package was sent by one of the most influential men in the California capital then, Gordon Schaber, a law-school dean who had enlisted a young Kennedy to teach night classes and who had nurtured his career.
Now, Schaber was angling for President Reagan to elevate his friend to the Supreme Court — and he wanted the Harvard professor’s support.
“Gordon Schaber said that Tony Kennedy was entirely comfortable with gay friends,” said Tribe, who later testified to urge the Senate to confirm Kennedy. “He said he never regarded them as inferior in any way or as people who should be ostracized, and I did think that was a good signal of where he was on these matters.”
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Now, as the Supreme Court prepares to rule on whether to grant a constitutional right to same-sex marriage, Kennedy, a onetime altar boy, has emerged as an unlikely gay-rights icon.
At 78, he has advanced legal equality for gays more than any other American jurist, making his friend Schaber, who died in 1997 — and who was, many who knew him believe, a closeted gay man — look prescient.
In three landmark opinions, including the 2013 decision overturning a ban on federal benefits for married same-sex couples, he has invoked human dignity with “a sense of empathy and sensitivity that is unusual,” said Arthur Leonard, an expert on gay-rights law at New York Law School.
If, as many analysts expect, the court this month does extend same-sex-marriage rights nationwide, Kennedy will get much of the credit.
Those who know him well cite a mix of factors in explaining his thinking: his views on privacy and liberty, his belief in marriage as a stabilizing force, his concern for the children of same-sex couples and his custom — in the words of one good friend, Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals — of “stepping into the skin” of those his decisions affect.
“I think it’s been an evolution,” said Kozinski, who served with then-Judge Kennedy on the appeals court. “Maybe what happened is the world around him changed, and the evolution has not been so much in his own thinking, as in the world we live in.”
Kennedy now has a gay clerk, Joshua Matz, who wrote a 2012 law-review article with Tribe titled “The Constitutional Inevitability of Same-Sex Marriage.” A former clerk, Paul Cappuccio, who was not openly gay when he worked for the justice in the late ’80s, recently married a man. When he and his husband became fathers in 2013, Kennedy sent his customary baby gift for clerks: an inscribed pocket Constitution.
And at the McGeorge School of Law campus in Sacramento — where Kennedy taught part time for 23 years and formed a deep intellectual bond with Schaber as they built the little-known school into a respected institution — an openly gay colleague, Larry Levine, says the justice has helped him get tickets to oral arguments in gay-rights cases before the Supreme Court. After each landmark ruling, Levine said, he has written to Kennedy to say, “both professionally and personally, how meaningful this is.”
It is difficult to know how much, or even whether, such personal interactions influence Kennedy’s jurisprudence.
As Cappuccio, now general counsel of Time Warner, said: “He takes liberty very seriously. Sure, I think it could be natural that one’s life experiences can have an impact. But I think it would be belittling of Justice Kennedy to say he might vote to recognize a constitutional right to same-sex marriage just because he knows people who are gay.”
Still, here in the California capital, where Kennedy grew up and spent most of his time before joining the Supreme Court in 1988, some see the long arc of his past playing a role — both in his decades-long friendship with Schaber and in the threads of moderation and tolerance woven into his Sacramento roots.
Shift after early rulings
In his earliest rulings as a member of the appeals court, which he joined in 1975, Kennedy did not demonstrate himself to be the friend of gay rights that Schaber later envisioned.
In 1976, the Harvard Law School graduate supported the firing of a federal employee for “homosexual conduct.”
In 1980, he affirmed the right of the Navy to dismiss gay sailors.
In 1982, he upheld the deportation of an Australian man who was in a same-sex relationship with an American.
But the 1980 case, Beller v. Middendorf, contained an important caveat.
In dense legal language, Kennedy noted “substantial academic comment which argues that the choice to engage in homosexual conduct is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual’s right to privacy.”
The language surprised Judge Stephen Reinhardt, a 9th Circuit liberal who joined the court that year.
“I always thought of Tony as someone who never really got out of Sacramento, who was very provincial,” Reinhardt said.
When Justice Lewis Powell announced his retirement in 1987, many in Sacramento thought Kennedy was the obvious pick.
Instead, Reagan nominated another federal appeals court judge, Robert Bork, an ultraconservative who was rejected by the Senate. A second candidate, Judge Douglas Ginsburg, withdrew amid controversy over past marijuana use. Kennedy, viewed as conservative yet more likely than Bork to win bipartisan support, was the third choice.
Ed Meese, who was attorney general under Reagan, said legal equality for gays was not discussed as an issue in the Kennedy evaluation.
“That subject never came up,” Meese said, “and there was nothing in his background one way or another.”
When the Bork nomination imploded, Schaber and Tribe — who had met Kennedy while receiving an honorary doctorate from McGeorge — began talking.
The previous year, Tribe had tried to persuade the Supreme Court to declare Georgia’s ban on sodomy unconstitutional. He lost that case, Bowers v. Hardwick, 5-4.
But even before Schaber sent the Kennedy opinions, Tribe had been reading them and concluded that the jurist “wouldn’t hesitate to overturn” Bowers.
“I called Schaber, and I said, ‘I think this guy is terrific,’ ” Tribe said. “And Schaber said, ‘Why don’t you testify for him?’ And I said, ‘I will.’ And Schaber said, ‘That might make the difference.’ ”
Not everyone was so convinced; Leonard, the gay-rights expert at New York Law School, viewed Kennedy as a “likely vote against us.”
In the end, Tribe and Schaber were correct, though Schaber did not live to see it.
As the swing vote on a deeply divided court, Kennedy typically sides with conservatives on issues like affirmative action and campaign finance, but with liberals on issues like the death penalty and gay rights.
In 2003, in the case of Lawrence v. Texas, he wrote the opinion striking down Texas’ anti-sodomy law — and issued a rare apology from the Supreme Court. “Bowers was not correct when it was decided,” he wrote, “and it is not correct today.”
Today, advocates of same-sex marriage predict Kennedy will take the next big step, by ruling it is protected under the Constitution.
But Cappuccio, the former clerk, warns that “it would be a mistake to take Justice Kennedy’s vote in the same-sex-marriage case for granted, because he also has a lifetime of experience as a judge who takes seriously the limited role of the federal courts.”