Matthew Lifson, Columnist
Ideology: Centrist Democrat | Writing from: Brown University

As pundits guess who President Obama will nominate to replace retiring Justice Stevens, the issue of gay marriage is never far-removed from the conversation. The stakes are high because Ted Olsen and David Boies, former adversaries during the controversial Bush v. Gore case that stifled the Florida recount, have forged an unlikely partnership almost certain to bring Perry v. Schwarzenegger, their challenge to Proposition 8, before the Supreme Court within the next two years. But what few liberals or conservatives understand is that Justice Kennedy, the court’s swing vote, has already decided that legalizing gay marriage will be his legacy.

Those familiar with the Supreme Court will be acquainted with its three-tiered system of review that governs 14th Amendment jurisprudence. In the vast majority of instances, the court applies rational-basis review, presuming laws to be constitutional and requiring only a rational relationship between the statute and a legitimate end. Laws involving distinctions based on gender must satisfy the more stringent demands of intermediate scrutiny:  a substantial relationship to an important governmental interest. Finally, laws that deal with race or significantly infringe upon fundamental liberties trigger strict scrutiny, the highest level of review, which requires the law be absolutely necessary to the achievement a compelling state interest.

Nearly every law examined under rational-basis review stands because the Supreme Court has maintained incredible deference to the legislative process, allowing almost anything not expressly forbidden by the Constitution to be a legitimate government end. Even if a law is poorly designed and affects a much greater or smaller audience than intended, the court lets it stand if there is still any imaginable possibility of addressing the original goal. In United States Retirement Board v. Fritz and FCC v. Beach Communications, Inc., the justices went so far as to hold that post-hoc justifications invented by government lawyers could satisfy rational-basis review and that the court is free to think up its own legitimate ends to justify the law if it finds the real rationale insufficient.

Because strict and intermediate scrutiny only apply to racial and gender classifications, gays as a group would seem entitled to no more legal protection than Harry Potter fans or professional ice skaters. Discriminatory laws should only need to satisfy the minimal requirements of rational-basis review, easy work given the court’s leniency. But when it comes to sexual orientation, the Supreme Court has not been playing by its own rules. Under the leadership of Justice Kennedy, it has been striking down anti-gay measures without explaining how its decisions fit into the traditional paradigm of judicial review. Although some consider Kennedy’s decisions erratic, it is clear he has been laying the groundwork for gay marriage for over a decade in order to secure his place in history as the Earl Warren of a new generation.

Consider the case of Romer v. Evans, brought before the court in 1996. Through a referendum,  Coloradans amended their state constitution to prohibit local governments from recognizing gays as a protected class. The state argued that the amendment was passed so that business owners and landlords with personal objections to homosexuality would not be forced to associate with gays and police would not have to spend scarce resources enforcing anti-discrimination statutes. This defense should have had no trouble standing up to rational-basis review, but the Supreme Court rejected Colorado’s reasoning. Writing for the majority, Kennedy conspicuously struck down the amendment without articulating which level of review sexual orientation classifications merit. Instead, he simply argued “the amendment seems inexplicable by anything but animus” and “desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,” demonstrating a level of skepticism toward Colorado’s rationale reserved only for cases of elevated scrutiny.

Kennedy was similarly evasive in 2003 when he authored the majority’s opinion in Lawrence v. Texas, the case that struck down Texas’s anti-sodomy laws. Where the justice traditionally should have stated exactly which right was in question and whether that right is fundamental (and therefore deserving of strict scrutiny), Kennedy embraced a generic “right to liberty” that includes “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” He further muddied his logic by declaring the statute in question “furthers no legitimate state interest,” seemingly disavowing majoritarian morality as a suitable government end under rational-basis review despite its widespread use as justification for laws regulating adult incest, drug use, and public decency.

Through Romer and Lawrence, Kennedy carved a special haven for gays in the American legal system that will inevitably lead to the rejection of same-sex marriage bans. With his peculiar logic regarding what can and cannot meet the standard of rational-basis review when gay rights are at stake and an immensely broad definition of the right to liberty, Kennedy has given himself the judicial weapons he will need to strike down Proposition 8 when Olsen and Boise’s have finally shepherded their case to the Supreme Court. Kennedy has already set in motion all the pieces necessary for him to write the opinion legalizing gay marriage, and it is just a matter of time before he makes Perry v. Schwarzenegger his own Loving v. Virginia.