While most reactions from the liberal media today regarding the Supreme Court's rulings on the gay marriage cases, liberal constitutional law professor and Daily Beast contributor Adam Winkler laments that the right rulings may have been made for the "wrong reasons."
Winkler made clear that he would have preferred the Court to have taken a far more activist tack and essentially recognize a nationwide fundamental right for persons of the same sex to marry (emphasis mine)
This language may be celebrated today, but by emphasizing respect for tradition, the Court may have sent a signal to lower courts that limiting marriage to one man and one woman remains constitutionally permissible. After all, allowing marriage only between one man and one woman is a longstanding tradition. If a central part of DOMA’s problem was its deviation from longstanding practice, then a state ban on same-sex marriage would not seem to pose the same problem. Moreover, Kennedy’s ode to states’ rights is hardly a boon to marriage equality proponents. Mississippi and Alabama’s authority to define marriage as they see fit appears to be given constitutional protection.
But alas, Anthony Kennedy, the libertarian-minded swing justice, is fairly cautious and conservative when it comes to sweeping changes in case law, Winkler laments, reminding his readers that:
Forsaking heightened scrutiny is on a par with Kennedy’s approach in past gay rights cases. While Kennedy wrote some major pro-gay rights opinions for the Court, those decisions have included caveats and qualifications that limited their impact. He’s consistently refused to say that LGBT classifications should receive heightened scrutiny. His opinion in the much-touted Lawrence v. Texas case, striking down same-sex sodomy bans, refused to say that gays and lesbians have a fundamental right to sexual privacy and made sure that gay marriage bans weren’t called into question. Indeed, after surveying Lawrence, a federal appeals court said that nothing in Kennedy’s opinion required striking down a ban on gay adoption. Kennedy’s embrace of gay rights has always been hesitant and incremental. DOMA is no different.
In conclusion, Winkler noted:
No doubt, proponents of equal rights for all should celebrate today’s rulings. Yet they should not mistakenly ignore the limits of what the Court has done. The Court’s promotion of same-sex marriage is like a shotgun wedding: done with reluctance, and without the loving embrace of someone fully committed to the sacred union.
Watch for others in the liberal media to come down off of Cloud 9 soon to similarly lament that the Court did not go far enough. Supreme Court justices don't live forever and there's a liberal president who is in office until January 2013. The socially liberal media know that the only thing keeping far more wide-ranging Court rulings on LGBT issues is putting more Ginsburgs, Breyers, Sotomayors and Kagans on the court.
For all the faults Justice Kennedy may have, particularly in the eyes of conservatives, he is still a far cry from the wildly activist liberal judge that liberal pundits and journalists would prefer to sit in his place some day on the Court.
