Justice Kennedy may be key in gay marriage edict

MARK SHERMAN
Associated Press

Sacramento, Calif. — 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.

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.

Helen Knowles, the author of a book about Kennedy’s jurisprudence, 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.