Justices Anthony Kennedy and Antonin Scalia fall along the same ideological lines on most issues, but one where the two differ are gay rights.
That difference will come to the fore on Tuesday, as the Supreme Court hears arguments on same-sex marriage.
The Washington Post
notes that the two were born the same year – 1936, but on opposite coasts — Scalia in New Jersey, Kennedy in California. Both also were appointed by President Ronald Reagan just 17 months apart.
And while Scalia holds an originalist approach that the Constitution grants only rights specifically enumerated and that any additional rights should be determined by the people, the more moderate Kennedy believes in the ability to interpret rights into the document that weren't specifically anticipated in the late 1700s.
Kennedy is often the swing vote in 5-4 decisions and has written the majority opinion in the three major gay-rights cases before the court over the past two decades. Scalia has written all the dissents.
Kennedy is widely seen as holding the key to the upcoming case. But it isn't cut-and-dried he will rule if favor of same-sex marriage nationwide. Kennedy is a strong proponent of states' rights, so many believe he could rule with the conservatives this time.
Republican presidential candidates, ceding that at least some states are going to allow gay marriage, have themselves made the argument that the issue should be settled state-by-state.
Arkansas Gov. Asa Hutchinson
said Sunday on "Meet the Press" he expects the court may rule that states maintain the right to determine whether same-sex couples can marry, but will be required to recognize unions from other states.
The first gay-rights case to come before pair was Romer v. Evans in 1996. In that case, voters in Colorado approved a constitutional amendment to strike down provisions passed by some cities that barred housing and work discrimination against homosexuals.
Kennedy wrote in his majority opinion overturning the amendment that the state "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."
Scalia responded, "This court has no business imposing upon all Americans the resolution favored by the elite class from which the members of this institution are selected, pronouncing that 'animosity' toward homosexuality is evil. I vigorously dissent."
In the 2003 Lawrence v. Texas decision striking down state sodomy laws, Kennedy wrote that private homosexual conduct "involves liberty of the person both in its spatial and more transcendent dimensions."
Scalia said that although homosexuals should have the right to push their cause democratically, "many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home."
Finally, in United States v. Windsor in 2013, Kennedy wrote that the federal government's refusal to offer benefits to married gay couples tells "all the world that their otherwise valid marriages are unworthy."
In Windsor, Scalia shot back again: "By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition."
Kennedy has defended his decisions, The Wall Street Journal
reports, saying in 2013, "If the framers knew all the specifics of a just society, they would have written them down. They didn’t do that. They weren’t so cocksure. But they had some very strong ideas, and they used words that appeal over time to our sense of justice and our sense of freedom.
He also told the Journal that his own thoughts on the subject had changed over time.
"It’s a thinking process that you go through, and sometimes you’re surprised at the result you come to," he said.
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