"This case is not about how the debate about same-sex marriage should be resolved. It is about who may resolve it," Tennessee's governor and attorney general said in an appellate brief filed Thursday, using language lifted almost word for word from Kennedy's Michigan opinion.
The sentence merely substituted "same-sex marriage" for "racial preferences." Tennessee is asking the Cincinnati-based 6th U.S. Circuit Court of Appeals to undo a preliminary ruling that forced the state to recognize same-sex marriages from other states.
Michigan Attorney General Bill Schuette, who also defended the ban on consideration of race, said in a filing with the same appellate court on Wednesday, "As Justice Kennedy recently explained, 'it is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.'"
Schuette added, "There is no authority in the Constitution of the United States or in this court's precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters."
Lawyers in support of state and county officials in Oklahoma, Utah and Virginia have made similar arguments.
But fighting Kennedy with Kennedy may be an uphill battle. The 77-year-old justice has also written the high court's three strongly pro-gay rights decisions in the past 18 years, with powerful language about the dignity of gay and lesbian Americans and the humiliation felt by children who are being brought up by same-sex parents who may face discrimination.
In the most recent case, the court struck down part of the federal anti-gay marriage law in June, and Kennedy's opinion has since been cited in an unbroken string of lower-court rulings in support of same-sex marriage.
To be sure, Kennedy's opinion in that case, U.S. v. Windsor, did not strike down state laws against same-sex unions. It dealt only with a federal law that denied a range of marriage benefits to same-sex couples who were legally married. But federal judges have leaned heavily on its reasoning to strike down restrictive marriage laws, as have lawyers for same-sex couples.
Peggy Tomsic, representing same-sex couples in Utah, said the Michigan case confirms the distinction between policy, where deference to the voters by courts is appropriate, and individual constitutional rights. The Michigan case "did not and could not hold that voters can deny constitutional rights," Tomsic said in a letter to appellate judges in Denver. The Supreme Court has held that in regulating marriage, states must respect constitutional rights.
"That principle remains true whether marriage is regulated by state ballot initiatives or through ordinary legislation," Tomsic said.
In the first of the three high court rulings, in 1996, Kennedy wrote for the court's majority when it overturned a voter-approved Colorado constitutional amendment forbidding laws to protect gays and lesbians in the state. In the second, the court overturned state laws making gay sex a crime.
Judges on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, will weigh the competing writings of Kennedy when they hear argument on Tuesday over the Virginia prohibition on same-sex marriage.