SACRAMENTO
— In the fall of 1987, a package arrived on the desk of Laurence H.
Tribe, a Harvard law professor who had just lost a Supreme Court case on gay rights. It contained the legal opinions of Anthony M. Kennedy, a strait-laced, conservative Republican jurist from Sacramento who hardly seemed sympathetic to that cause.
The
package was sent by one of the most influential men in the California
capital then, Gordon Schaber, a law school dean who had enlisted a young
Mr. Kennedy to teach night classes and nurtured his career. Now Mr.
Schaber was angling for President Ronald Reagan to elevate his friend to
the Supreme Court — and he wanted the Harvard professor’s support.
“Gordon
Schaber said that Tony Kennedy was entirely comfortable with gay
friends,” said Professor Tribe, who later testified to urge the Senate
to confirm Justice Kennedy. “He said he never regarded them as inferior
in any way or as people who should be ostracized, and I did think that
was a good signal of where he was on these matters.”
Now, as the Supreme Court prepares to rule on whether to grant a constitutional right to same-sex marriage,
Justice Kennedy, a onetime altar boy, has emerged as an unlikely gay
rights icon. At 78, he has advanced legal equality for gays more than
any other American jurist, making his friend Mr. Schaber, who died in
1997 — and who was, many who knew him believe, a closeted gay man — look
prescient.
In
three landmark opinions, including the 2013 decision overturning a ban
on federal benefits for married same-sex couples, he has invoked human
dignity with “a sense of empathy and sensitivity that is unusual,” said
Prof. Arthur Leonard, an expert on gay rights law at New York Law
School. If, as many analysts expect, the court this month does extend same-sex marriage rights nationwide, Justice Kennedy will get much of the credit.
Those
who know him well cite a mix of factors in explaining his thinking: his
views on privacy and liberty, his belief in marriage as a stabilizing
force, his concern for the children of same-sex couples and his custom —
in the words of one good friend, Judge Alex Kozinski of the United
States Court of Appeals for the Ninth Circuit — of “stepping into the
skin” of those his decisions affect.
“I
think it’s been an evolution,” said Judge Kozinski, who served with
then-Judge Kennedy on the appeals court. “Maybe what happened is the
world around him changed, and the evolution has not been so much in his
own thinking, as in the world we live in.”
Justice
Kennedy now has a gay clerk, Joshua Matz, who wrote a 2012 law review
article with Mr. Tribe titled “The Constitutional Inevitability of
Same-Sex Marriage.” A former clerk, Paul T. Cappuccio, who was not
openly gay when he worked for the justice in the late 1980s, recently
married. When Mr. Cappuccio and his husband became fathers in 2013,
Justice Kennedy sent his customary baby gift for clerks: an inscribed
pocket Constitution.
And
at the McGeorge School of Law campus in Sacramento — where Justice
Kennedy taught part time for 23 years and formed a deep intellectual
bond with Mr. Schaber as they built the little-known school into a
respected institution — an openly gay colleague, Larry Levine, says the
justice has helped him get tickets to oral arguments in gay rights cases
before the Supreme Court. After each landmark ruling, Mr. Levine said,
he has written to Justice Kennedy to say, “both professionally and
personally, how meaningful this is.”
It
is difficult to know how much, or even whether, such personal
interactions influence Justice Kennedy’s jurisprudence. As Mr.
Cappuccio, now general counsel of Time Warner Inc., said: “He takes
liberty very seriously. Sure, I think it could be natural that one’s
life experiences can have an impact. But I think it would be belittling
of Justice Kennedy to say he might vote to recognize a constitutional
right to same-sex marriage just because he knows people who are gay.”
Still,
here in the California capital, where Justice Kennedy grew up and spent
most of his time before joining the Supreme Court in 1988, some see the
long arc of his past playing a role — both in his decades-long
friendship with Mr. Schaber and in the threads of moderation and
tolerance woven into his Sacramento roots.
In Warren’s Shadow
This
California city during Anthony Kennedy’s childhood in the 1940s and
’50s was not, those who lived here say, an especially partisan or
judgmental place. It was dominated by a looming figure: Earl Warren, the
Republican governor of California and future chief justice of the
United States.
“Sacramento
was extremely tolerant,” said Earl Warren Jr., 85, a son of the
governor and a retired lawyer. “We had lots of gay people who were very
prominent. If you knew or suspected that was the case, it didn’t make
any difference. I was a Boy Scout in Sacramento in the 1940s, and we had
gay leaders in the community who were also gay scout leaders. They were
good friends and good leaders, and there was never any problem.”
In
1941, when Anthony Kennedy was 5, his family settled in Land Park, a
neighborhood of curving streets, stately homes and lawns dotted with
rhododendrons — a place, said Joe Genshlea, a lifelong friend, “where
everybody knew everybody else, and life was just very stable.”
The
writer Joan Didion, a good friend of the future justice’s older sister,
was a frequent guest in the Kennedy home. The boxer Max Baer — whose
son Max Jr. went on to play Jethro on “The Beverly Hillbillies” — lived a
few blocks away. The Warren children, who attended the same public high
school as the future justice, were often around.
Justice
Kennedy’s parents were political and social fixtures in the capital.
His father, Anthony, known as Bud, was a Republican lobbyist who
represented tobacco interests — a whiskey-drinking, cigar-smoking,
“poker-playing, keep-your-cards-to-your vest attorney,” said Dr. David
Dozier, a retired neurologist and friend of the justice’s since
kindergarten. His mother, Gladys, called Sis, hosted backyard parties
for legislators and their wives.
Unlike
his backslapping father and lively mother, the future justice was
button-down and serious. (To this day, Dr. Dozier says, he has never
heard his friend swear.) When he was in the fourth grade, his father
arranged for him to work in the capital as a Senate page — a job that
allowed him to observe Governor Warren up close.
Today,
legal scholars see parallels in Justice Kennedy’s record on gay rights
and Chief Justice Warren’s record on civil rights, notably his landmark
1954 Brown v. Board of Education decision desegregating public schools.
Lou Cannon, the Reagan biographer and California journalist, says
Justice Kennedy told him long before he joined the court that he
“thought that Warren was a good chief justice and a good lawyer, as well
as being on the right side of history.” Justice Kennedy declined to be
interviewed for this article.
The
future justice was two years out of Harvard Law School and practicing
law in San Francisco when, in 1963, his father died. His mother asked
him to move home to take over Bud Kennedy’s law and lobbying business.
He settled in Land Park and married Mary Davis, a teacher and Sacramento
native, that year.
It
was not long before Mr. Schaber paid him a call. A round-faced,
bespectacled man who had a limp and wore one corrective shoe (a remnant
of childhood polio), Mr. Schaber, born into modest circumstances in
North Dakota, had moved to Sacramento as a child. When he became dean at
McGeorge, an unaccredited night school above a downtown radio store, in
1957 at age 29, he was the youngest law school dean in the country.
A
Democrat, Mr. Schaber — who went on to serve five years as presiding
judge of the Sacramento County Superior Court — advised politicians,
including governors, of both parties. “He was a must-visit consultant,”
said Clark Kelso, a former Kennedy clerk and McGeorge professor, “to
anybody who wanted to get elected to anything in Sacramento.”
He
was outgoing and erudite. “He loved to eat well, and entertain well,”
Mr. Kelso said, and dressed impeccably in tailored shirts. (For years
after he joined the court, Justice Kennedy listed a gift of $400 worth
of shirts from Mr. Schaber on his financial disclosure forms.)
If
politics was Mr. Schaber’s passion, said Glendalee Scully, a retired
McGeorge professor, “the law school was his baby,” and he saw in the
future justice “a shining star.” When Mr. Schaber reached out, the young
lawyer volunteered to teach contracts. Mr. Schaber replied that
contracts was taken. “You,” he said, “can teach constitutional law.”
Justice
Kennedy relished teaching, and Mr. Schaber became a mentor to him, Mr.
Kelso said. The two worked closely as the dean directed the school’s
merger with the University of the Pacific and its expansion to a 22-acre
campus in Sacramento’s Oak Park neighborhood.
When
Mr. Schaber developed a summer program on international law in
Salzburg, Austria, the future justice signed on; he still spends a week
teaching there each summer, which gives the school, now known as Pacific
McGeorge, bragging rights to claim him as its “longest-serving faculty
member.” In the school cafeteria, the Anthony M. Kennedy
Wall of Judicial Honor features photographs of alumni who became
judges. The wood-paneled law library displays a large painting of
Justice Kennedy that will one day hang in the Supreme Court.
The
two men traveled and often had dinner together, recalled Bernadine
Schaber Adams, who was married to Mr. Schaber’s brother, Gary, then the
business manager at McGeorge. “They were very close,” she said, adding
that the family gave Justice Kennedy a pair of Mr. Schaber’s cuff links
after he died. “Gordon knew all the good things about Judge Kennedy. So
he went to bat for him.”
In
1967, when Ronald Reagan became California governor, he wanted advice
on a tax-cutting ballot initiative; Mr. Schaber recommended Mr. Kennedy.
His work led Reagan to propose that President Gerald R. Ford appoint
him to the federal appeals court. It led, as well, to a close friendship
with Edwin Meese III, the Reagan adviser, who as attorney general under
Reagan was instrumental in Justice Kennedy’s appointment to the Supreme
Court.
If
Mr. Schaber was indeed gay — as nearly a dozen people here who knew
him, including law school colleagues and Mrs. Schaber Adams, say they
suspect — he took pains to conceal it. He had at least one female
companion, a judge who died in 1990. In gay circles, there were whispers
about his sexuality. But in polite Sacramento society, people did not
discuss it. Nor did he.
“He
had been trained to maintain his decorum, I guess you would call it,”
Mrs. Schaber Adams said. But of Justice Kennedy, she said, “I think he
knew.”
Shift After Early Rulings
In
his earliest rulings as a member of the appeals court, which he joined
in 1975, Judge Kennedy did not demonstrate himself to be the friend of
gay rights that Mr. Schaber later envisioned.
In
1976, he supported the firing of a federal employee for “homosexual
conduct.” In 1980, he affirmed the right of the Navy to dismiss gay
sailors. In 1982, he upheld the deportation of an Australian man who was
in a same-sex relationship with an American.
But
the 1980 case, Beller v. Middendorf, contained an important caveat. In
dense legal language, Judge Kennedy noted “substantial academic comment
which argues that the choice to engage in homosexual conduct is a
personal decision entitled, at least in some instances, to recognition
as a fundamental right and to full protection as an aspect of the
individual’s right to privacy.”
The
language surprised Judge Stephen Reinhardt, a Ninth Circuit liberal who
joined the court that year. “I always thought of Tony as someone who
never really got out of Sacramento, who was very provincial,” Judge
Reinhardt said. “He was a very traditional, straight person, very
moralistic.”
Sometime
in the 1980s, a gay couple moved a few doors down from the Kennedys in
Land Park; Mr. Genshlea recalls their arrival as “not a big deal.” Judge
Kennedy took Mr. Meese and his wife to a housewarming party at the male
couple’s home, according to a 1987 article in The Los Angeles Times,
which quoted a friend expressing the future justice’s attitude: “If they
can tolerate me, I can sure tolerate them.”
When
Justice Lewis Powell announced his retirement from the court in 1987,
many in Sacramento thought Judge Kennedy was the obvious pick. Instead,
Reagan nominated another federal appeals court judge, Robert H. Bork, an
ultraconservative who was rejected by the Senate. A second candidate,
Judge Douglas H. Ginsburg, withdrew amid controversy over past marijuana
use. Judge Kennedy, viewed as conservative yet more likely than Judge
Bork to win bipartisan support, was the third choice.
Mr.
Meese, in an interview, said legal equality for gays was not discussed
as an issue in the Kennedy evaluation. “That subject never came up,” Mr.
Meese said, “and there was nothing in his background one way or
another.”
When
the Bork nomination imploded, Mr. Schaber and Professor Tribe — who had
met then-Judge Kennedy while receiving an honorary doctorate from
McGeorge — began talking. The previous year, Mr. Tribe had tried to
persuade the Supreme Court to declare Georgia’s ban on sodomy
unconstitutional. He lost that case, Bowers v. Hardwick, 5 to 4.
But
even before Mr. Schaber sent the Kennedy opinions, Mr. Tribe had been
reading them and concluded that the jurist “wouldn’t hesitate to
overturn” Bowers. “I called Schaber, and I said, ‘I think this guy is
terrific,’” Mr. Tribe said. “And Schaber said, ‘Why don’t you testify
for him?’ And I said, ‘I will.’ And Schaber said, ‘That might make the
difference.’ ”
Not
everyone was so convinced; Professor Leonard, the gay rights expert at
New York Law School, viewed then-Judge Kennedy as a “likely vote against
us.” In the end, Mr. Tribe and Mr. Schaber were correct, though Mr.
Schaber did not live to see it.
As
the swing vote on a deeply divided court, Justice Kennedy typically
sides with conservatives on issues like affirmative action and campaign
finance, but with liberals on issues like the death penalty and gay
rights. In 2003, in the case of Lawrence v. Texas, he wrote the opinion
striking down Texas’s anti-sodomy law — and issued a rare apology from
the Supreme Court. “Bowers was not correct when it was decided,” he
wrote, “and it is not correct today.”
Today,
advocates of same-sex marriage predict Justice Kennedy will take the
next big step, by ruling it is protected under the Constitution. But Mr.
Cappuccio, the former clerk, warns that “it would be a mistake to take
Justice Kennedy’s vote in the same-sex marriage case for granted,
because he also has a lifetime of experience as a judge who takes
seriously the limited role of the federal courts.”
Here
in Sacramento, where the county courthouse is now named in Mr.
Schaber’s honor, those who knew him cannot help but wonder if the
justice is thinking about his old friend. Shortly after Mr. Schaber died
in November 1997, more than 750 dignitaries, judges and lawyers
gathered in a downtown Sacramento auditorium to honor him on what would
have been his 70th birthday. President Bill Clinton sent a letter;
Robert Matsui, the Democratic congressman, spoke.
But
all eyes were on Justice Kennedy, the American Bar Association
newsletter reported, as he delivered the eulogy, with Mr. Schaber’s
familiar round face displayed on a giant videoscreen.
He
recalled Mr. Schaber’s record of helping others: “the student who
needed financial aid,” or “the professional whose career was on the
brink of ruin and just needed a second chance.”
And
he talked of Mr. Schaber’s commitment “to a law that seeks compassion,
to a law that seeks justice.” As he spoke, Justice Kennedy “paused to
look up at Schaber’s face on the screen,” the newsletter said, “as if to
seek approval from his longtime friend.”
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