“Most of us, even in your own young lifetimes, probably didn’t talk much about it,” he told the students. “So I think all of us were surprised at the speed of the thing.”
In some ways, he said, it was unfortunate that the issue arrived at the court so soon, instead of at some future date when society may have been more acclimated to same-sex marriage.
“We come in too soon and too broad, we terminate” the democratic debate, Justice Kennedy said. On the other hand, he said, “suppose you have a person with an injury, a person is hurting. He comes to court seeking relief.” The court could say, “You go away for 10 years, then I’ll see you,” Justice Kennedy said. “That would be maybe better for the court,” but the individual might be denied his or her rights in the interim.
“Ideally, I think society would discuss this, debate it over time,” rather than present the dispute to the courts, Justice Kennedy said. He compared the gay-rights situation to that of abortion rights. Some critics, including Justice Ruth Bader Ginsburg, have said the 1973 Roe v. Wade decision recognizing abortion rights may have contributed to polarization over the question.
“There wasn’t even the opportunity for different people to formulate their views or the polity to express its view, and she [Justice Ginsburg] was quite right about that,” he said.
Kennedy also didn’t seem too concerned with originalism or textualism. Instead, they appealed to our “sense of freedom”
“I don’t think Madison and Wilson and the members of the drafting committee spent a lot of time with the dictionary. I think they wrote in expansive terms: Life, liberty, property,” Justice Kennedy said.
“You have to recognize that 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,” he said. “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.”
Is it just me or has the rhetoric of Supreme Court remarks of late heightened to a new level. Justice Stevens, Justice Ginsburg, Justice Scalia, now Justice Kennedy. I don’t remember remarks being so blunt.