Kennedy Conspiracy Theory: TV Preacher Robertson Wonders If Gay Clerks Influenced Supreme Court Justice

TV preacher Pat Robertson wonders if Justice Anthony Kennedy was influenced by gay law clerks.

I’ve been monitoring the reaction of Religious Right groups to the Supreme Court’s marriage equality rulings. It’s not pleasant, but somebody has to do it.

I took special interest in the response of TV preacher Pat Robertson. As some of you may know, I’ve long had an interest in the ramblings of the eccentric Virginia televangelist and even wrote a book about him in 1996. (What can I say? A fellow needs a hobby.)

Alas, Pat’s comments turned out to be a lot of rehashed boilerplate about Sodom and Gomorrah.

“Ladies and gentlemen,” he intoned, “your liberties are in danger because, read the Bible about Sodom and Gomorrah. That’s where the term comes from, Sodom. Look what happened to Sodom. After a while, there wasn’t any other way, and God did something pretty drastic.”

Yawn. We’ve heard all of that before. Pat’s been carping about Sodom and Gomorrah for a long time. I was expecting something much better, like perhaps a promise that a meteor might hit the Supreme Court.

Robertson did have an interesting theory about the rulings that he outlined earlier in the day on “The 700 Club.” During an interview with Jay Sekulow, a Religious Right attorney who has worked for Pat for years, Robertson demanded to know, “Jay, let me ask you about Anthony Kennedy. Does he have some clerks who happen to be gays?”

I rarely have sympathy for Sekulow, but one could almost see him internally rolling his eyes as he labored to steer the conversation in another direction.

Pat loves a conspiracy theory. Therefore, Justice Kennedy must have been influenced by a nest of gay law clerks. In fact, there’s a simpler explanation: Kennedy has, throughout his time on the high court, been sympathetic to LGBT rights. His ruling striking down the Defense of Marriage Act (DOMA) was no surprise. He telegraphed his intentions during the oral argument in March. I was lucky enough to get a seat in the press gallery that day. I’m not a lawyer, but you didn’t have to be to see which way Kennedy was leaning.

The U.S. v. Windsor ruling is in line with Kennedy’s previous decisions in this area. In 1996, the Supreme Court invalidated an amendment to the Colorado Constitution that prohibited any jurisdiction in Colorado from recognizing gay rights. Kennedy wrote the majority opinion.

In 2003, the Supreme Court overturned a previous ruling and struck down a Texas law that criminalized consensual sexual acts between same-sex couples. Kennedy wrote this opinion as well.

I think what confuses Robertson and those who think like him is that Kennedy takes positions like this even though he’s hardly some flaming liberal. He sides with the conservative bloc more often than not, specifically on issues such as health care, gun control and voting rights. On church-state issues, his record is decidedly mixed. Kennedy was part of a court majority that struck down school-sponsored prayer during graduation ceremonies in 1992 but voted to uphold Ohio’s private school voucher plan in 2002.  

Kennedy, though, has been more consistent on gay rights. The justice believes that the Constitution’s equal protection and equal liberty provisions mean that the government can’t single out people for ill treatment or discrimination simply because they happen to be gay.

So, sorry, Pat, but it really didn’t take a gay clerk to persuade Kennedy on DOMA. He was already there.

If hiring gay law clerks were enough to change a justice’s mind in this area, I’d be happy to send an entire troop over to the office of Justice Antonin Scalia.