Retired US Supreme Court justice Anthony Kennedy, who penned the 2015 court ruling in favour of equal marriage, has admitted he “struggled” with the case.
Kennedy, a conservative Republican appointee, was the crucial swing vote on the Supreme Court that enabled the court’s 5-4 ruling on 2015 case Obergefell v. Hodges that brought equal marriage to all 50 states.
The justice authored the court’s poignant ruling on the rights of gay couples to equal treatment, but has now spoken about his own personal struggle with the issue.
“The nature of injustice is you can’t see it in your own time.”
— Justice Anthony Kennedy
Speaking to Bloomberg for The David Rubenstein Show on November 26, Kennedcy said of the ruling: “In a sense, it surprised me.
“The outcome [was surprising], because of my religious beliefs. That’s one of the reasons I wrote it, is because it seemed to me I couldn’t hide.”
Justice Anthony Kennedy: ‘I struggled with it’
The justice explained that despite his owned predisposed views, consideration for the rights of children with gay parents led to his decision to err in favour of equality.
Kennedy said: “The nature of injustice is you can’t see it in your own time. As I thought about it more and more, it seemed to me just wrong that under the constitution, over 100,000 adopted children of gay parents could not have their parents married.
“I just thought this was wrong. I struggled with it, I wrote the decision over a weekend, and that’s the way I came out. As you write the reasons either compel themselves or not.”
Kennedy, who retired from the court in July 2018, added: “I tell judges, your duty in every case is to ask, why are you doing what you’re about to do? What are the reasons?
“Even if you’ve done it a hundred times, you have to ask what those reasons are again and see if they are still valid.
“You take an oath to listen to each side, and if you make up your mind in advance, you’re not following that oath.”
Justice Anthony Kennedy was crucial swing vote on LGBT+ issues
Kennedy was also the key swing vote on the court’s 2013 United States v. Windsor ruling that struck down the federal anti-LGBT Defense of Marriage Act.
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He also sided with liberals in favour of equality on 2003’s Lawrence v. Texas ruling that struck down the remaining state-level sodomy laws criminalising gay sex.
The court’s narrow majority on LGBT+ issues has now likely disappeared, after Kennedy’s retirement in July 2018 gave President Donald Trump the chance to nominate Brett Kavanaugh to the bench.
Ruth Bader Ginsburg denies Trump the chance to appoint another Supreme Court justice
Pro-LGBT Supreme Court justice Ruth Bader Ginsburg, aged 85, recently vowed to continue serving for five more years.
Speaking in July, she said: “I’m now 85… my senior colleague, Justice John Paul Stevens, he stepped down when he was 90, so think I have about at least five more years.”
She noted that there are no term limits for Supreme Court seats, which are held until retirement or death.
The time-frame would handily deny President Trump the chance to push through her replacement if she retires in 2023.
Ginsburg has earned an unlikely following among LGBT+ liberals in recent years thanks to her unwavering support for equality.
Her frequent dissents from the court’s more conservative justices earned her the nickname ‘Notorious RBG’.