SACRAMENTO, Calif. (AP) — The Irish Catholic boy who came of age in Sacramento after World War II is an unlikely candidate to be the author of the Supreme Court’s major gay rights rulings.
But those who have known Justice Anthony Kennedy for decades and scholars who have studied his work say he has long stressed the importance of valuing people as individuals. And he seems likely also to have been influenced in this regard by a pillar of the Sacramento legal community, a closeted gay man who hired Kennedy as a law school instructor and testified on his behalf at his high court confirmation hearings in Washington.
With three major gay rights opinions to his name already, the 78-year-old Kennedy is the prohibitive favorite to write the Supreme Court decision in June that could extend same-sex marriage nationwide.
Kennedy’s friendship with Gordon Schaber began in the mid-1960s when Schaber recruited the young lawyer to teach at the McGeorge School of Law in Sacramento. Schaber, who served as the school’s dean for 34 years, was in the process of transforming McGeorge from an unaccredited night school to a respected institution that now is a part of Pacific University.
Schaber never married and was widely believed to be gay, according to accounts from a dozen people who worked for him or were active in Sacramento’s political and legal communities.
“Schaber’s sexual orientation was general knowledge among the Sacramento community and the law school community,” said Glendalee “Glee” Scully, the longtime director of McGeorge’s legal clinic, where students got practical experience by taking on cases for people who couldn’t otherwise afford a lawyer.
Among those who worked at the school when Schaber was dean, not one could recall Schaber discussing his sexual orientation. “Generationally, it was not something gentlemen spoke about,” said McGeorge professor Larry Levine, himself openly gay.
Scully said, “As close as he and Tony Kennedy were as friends, I would doubt they ever had a conversation about it. But how can’t it have helped to some degree Tony’s willingness to have an open mind?”
Only nine years older than Kennedy, Schaber was a mentor to many of the young lawyers he brought to the school and looked after them in ways large and small.
Schaber helped some become judges. Year after year, Kennedy reported the same gift from Schaber on his annual financial disclosures, $400 worth of shirts.
Kennedy spoke at the dedication of the Sacramento courthouse in Schaber’s memory, but he has never talked about how Schaber has influenced his views on the bench. Kennedy declined to respond to questions for this story.
Schaber died in 1997, just shy of his 70th birthday.
By that time, Kennedy had written his first gay rights ruling on the Supreme Court, striking down a Colorado constitutional amendment that prevented local governments from enacting anti-discrimination protections for gays and lesbians.
In 2003, Kennedy again authored the majority opinion in Lawrence v. Texas, which struck down state laws that made gay sex a crime.
“It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons,” Kennedy wrote. “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”
Ten years later, Kennedy’s opinion for the court in U.S. v. Windsor struck down part of the federal anti-gay marriage law. “It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage,” Kennedy wrote in the Windsor case.
The decision left for another day the question of whether states can keep same-sex couples from marrying. That question is now before the court, with arguments set for April 28.
So what are the roots of Kennedy’s views?
Childhood friend Joseph Genshlea said the issue never came up at Stanford University, where they attended college together in the 1950s, or the Sacramento neighborhood in which both grew up and later raised their own families.
“When we were in college, we didn’t even know there was a closet,” Genshlea said. “I don’t have an answer to it except that he’s a very bright guy and he certainly has thought through the issue.”
Another longtime friend, former California Gov. Pete Wilson, said Kennedy always has evaluated people as individuals, not as members of a group. Kennedy, he said, sees everyone “based on their merits.”
Justice Ruth Bader Ginsburg suggested in an interview last summer that one reason for changes in public opinion in favor of same-sex marriage was that, as gay Americans became more comfortable talking about the topic, people learned that they had gay friends and relatives, “people you have tremendous respect for.” She was describing what sociologists call the contact theory, the idea that the majority group’s interactions with a minority will break down stereotypes and enhance acceptance of the minority group.
Helen Knowles, the author of a book about Kennedy’s jurisprudence, said she doesn’t place too much emphasis on this theory.
“Having said that, I have difficulty believing that Kennedy’s friendship with Gordon Schaber didn’t affect his views,” said Knowles, a professor of government at Skidmore College in Saratoga Springs, New York. Her book is “The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty.”
Knowles and political science professor Frank Colucci of Purdue University Calumet in Hammond, Indiana, said the earliest indication of Kennedy’s views about the treatment of gays and lesbians can be found in a 1980 ruling that ironically upheld the Navy’s dismissal of gay sailors.
“He rules in favor of the Navy policy, but it’s about as sympathetic as one could be to the plaintiff,” Colucci said.
Kennedy was a judge on the 9th U.S. Circuit Court of Appeals at the time. “Upholding the challenged regulations as constitutional is distinct from a statement that they are wise. The latter judgment is neither implicit in our decision nor within our province to make,” he wrote then.
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