Much of this week’s news is the Supremes and gay marriage, so what could be a better introduction than a piece on the man who will probably be the swing vote in this great debate?
We are, of course, talking about Justice Anthony M. Kennedy who was profiled Monday in the Los Angeles Times, the day before oral arguments. The Times is a natural medium to look at considering that Kennedy’s career took an interesting turn in Sacramento. That’s where he issued a ruling that wondered out loud if homosexual acts between consenting adults might be a constitutional right.
The article begins as follows:
Anthony M. Kennedy was a 44-year-old appeals court judge in Sacramento -- a Republican appointee and happily-married Catholic -- when he first confronted the question of whether the Constitution protected the rights of gays and lesbians.
His answer in 1980 did not make him a gay rights hero. Kennedy upheld the Navy’s decision to discharge three service members for “homosexual acts.”
But less noticed in that somewhat reluctant opinion -- unusual for its time, just two weeks before Ronald Reagan was elected president -- were the doubts Kennedy raised about the constitutionality of laws criminalizing gay sex.
“To many persons, the regulations [labeling homosexuals as unfit] may seem unwise,” Kennedy wrote for the U.S. 9th Circuit Court of Appeals. Outside the “unique” military context, the Constitution may well protect “consensual private homosexual conduct.”
Judges Antonin Scalia and Robert Bork, whom Reagan appointed to the U.S. appeals court in Washington, dismissed as “completely frivolous” the notion that the Constitution extended rights to gays and lesbians.
"We would find it impossible to conclude that a right to homosexual conduct is fundamental" and protected as a matter of liberty and privacy, they wrote in 1984.
Reagan would later nominate both Scalia and Bork to the Supreme Court, but Bork’s nomination failed after a momentous Senate battle. After Bork’s defeat, Reagan turned to a young lawyer he had known from his years in Sacramento -- Anthony Kennedy. It turned out to be pivotal moment in the nation's struggle over gay rights.
It’s hard to ignore the repetition of the phrase “gay rights” in nearly every paragraph. “Gay rights” is like “abortion rights;” a loaded phrase on a loaded topic that denotes acceptance. Who in their right mind would be against something with the word “rights” attached?
And there’s that tantalizing religion ghost that shows up in the lead paragraph and then disappears for the rest of the piece.
Kennedy was or is a Roman Catholic? Last we heard, that’s an ancient body that takes a very strong stance on homosexual acts. Was part of Kennedy’s dithering on the topic the result of any religious teaching he might have picked up in church? Remember, he was an altar boy once. Does he attend church now?
We’ll never know because the reporter never circles back to tell us. The faith element was worth waving in the lede, then not worthy of follow-up work.
Then we hear that Kennedy’s friends don’t know which way he leans, but that:
Instead, Kennedy’s friends and former law clerks point to a repeated theme running through his court opinions -- that the Constitution protects “dignity” and “decency,” two concepts that sometimes align him with liberals.
Really? Some of us think of the anti-Internet porn Communications Decency Act of 1996 when we hear the word “decency.” As for “dignity,” the Oregon Death With Dignity Act (the nation’s first) wasn’t passed until 1994. Kennedy’s ruling was in 1980.
Chances are that no one was linking those two words to any lefty causes at the time. Plus other publications, like the New Republic, have shot down the "dignity" connection. But the reporter is sure trying to get us to go in that direction. The piece goes on to illustrate Kennedy’s seeming evolution on gay sex and how he’s been saying all along there’s no reason to deny marriage to homosexual couples. And the reporter may be right but this reads more like an opinion piece -- and should have been labeled as such -- than as traditional, straight-forward news work.
The journalism bottom line: This story contains no quotes from anyone contesting this view of Kennedy or offering selections from his rulings that contradict the flow of this narrative.
Surely, to quote Al Gore, there are some inconvenient truths lurking somewhere and maybe Kennedy is not the shoe-in on homosexual unions that the Times portrays him as being. At least give us the opportunity to hear from some articulate people who beg to differ.
Or there may be conservative publications that say Kennedy is a poor excuse for a Catholic jurist and that he's a good example of how one can grow up Catholic and not understand the central teachings of the church. I know many publications have made up their minds as to how the wind’s blowing and they’re not going to step in the way of this juggernaut. And the Times isn’t alone in trying to foresee the future.
The Associated Press writes here about the crucial intellectual and social role played by Kennedy’s “gay mentor” who of course must have influenced the justice back in his Sacramento days. However, friend-of-this-blog Rod Dreher points out that sympathy to homosexuals is one thing; finding a right to gay marriage in the Constitution is another. And the latter is what’s before the Court. That's the news story.