Justice Kennedy's Former Clerk Explains Why He Thinks His Old Boss Killed The Defense Of Marriage Act
Ex-Kennedy clerk Christopher Walker, who's a professor at The Ohio State University, doesn't seem surprised his former boss wrote the opinion finding the law denying federal marriage benefits to gays unconstitutional.
Walker had this to say in an email to BI:
I've always thought of and admired Justice Kennedy as a libertarian-minded jurist who values greatly human dignity, individual liberty, and states' rights. With respect to the constitutional challenge to DOMA, you had a perfect storm with all three values at play, and I think each value played an important role in shaping the ultimate outcome.
Kennedy, a Reagan appointee, has always been a bit of a wild card.
When he was nominated to the Supreme Court in 1987, The New York Times noted that he had "basically conservative leanings" but was viewed by Republicans as not conservative enough. Many legal experts, like Walker, now view him as a libertarian and a fan of federalism.
Walker tells us he believes that each of Kennedy's beliefs in freedom, dignity, and states' rights played an equally important role in striking down DOMA. His belief in states' rights was also pretty clear from his dissent in the case over California's gay marriage ban Proposition 8.
In that case, Kennedy seemed furious that the majority of the court didn't want to let anti-gay marriage groups defend the gay marriage ban in court. By not hearing the case, the Supreme Court leaves a judge's decision to overturn the ban in place and lets gays marry in California.
Nobody knows how Kennedy would have ruled on Prop 8, but his desire to hear it reflects his belief in states' rights to recognize who has standing to defend a law in court, Walker says.
In both gay marriage cases, Walker says, "you see Justice Kennedy's federalism values at play — federalism values that tie back to his libertarian judicial philosophy."