Is Justice Kennedy 'Libertarian' When He Agrees With Justice Ginsburg and 'Paternalistic' When He Doesn't?

New York
Times legal writer Adam Liptak
reports that Justice Ruth Bader Ginsburg “sees an
inconsistency” between the Supreme Court’s “gay rights rulings” and
its “cases involving gender.” In the former cases, says Liptak,
“the court uses the soaring language of ‘equal dignity’ and has
endorsed the fundamental values of ‘liberty and equality.'” But in
the latter cases, according to Ginsburg, “the court has never fully
embraced ‘the ability of women to decide for themselves what their
destiny will be.'” The main explanation for the inconsistency,
Liptak says, seems to be Justice Anthony Kennedy, who tends to
provide the fifth vote in closely divided decisions. Liptak writes
that “legal scholars say his jurisprudence is marked by both
libertarian and paternalistic impulses, ones that have bolstered
gay rights and dealt setbacks to women’s groups.”

Although I am not exactly eager to defend Kennedy’s
libertarian consistency, this analysis seems wrongheaded to me.
In the gay rights cases to which Liptak refers, the Court struck
down a Colorado constitutional amendment forbidding local bans
on discrimination against homosexuals (Romer
v. Evans, 1996), a Texas law criminalizing
sodomy (Lawrence
v. Texas, 2003), and a federal law barring recognition of
state-sanctioned gay marriages (U.S.
v. Windsor, 2013). All three of these decisions involved
challenges to state actions (although the Colorado case indirectly
involved private discrimination as well). By contrast, the “cases
involving gender” mentioned by Liptak dealt with “equal pay,
medical leave, abortion and contraception.” The Court upheld a
government restriction on individual freedom in one of those
rulings: Gonzales
v. Carhart, the 2007 decision deeming the Partial Birth
Abortion Ban Act constitutional. In the other three “gender”
decisions, the Court rejected government restrictions
on individual freedom. So in what sense does the latter set of
cases illustrate the impact of Kennedy’s “paternalistic” impulses,
as opposed to his “libertarian” impulses?

Why is it “paternalistic,” for example, to
say that the Religious Freedom Restoration Act bars Congress
from forcing employers to provide health insurance that covers
forms of birth control to which they object on religious grounds?
Whether or not the Court’s reading of the statute is correct, the
result is, if anything, libertarian, freeing some people from one
aspect of an unjustified legal mandate (albeit for reasons that are

arguably troubling).

A clue to this puzzle can be found in Ginsburg’s claim
(paraphrased by Liptak) that “the court’s five-justice conservative
majority, all men, [does] not understand the challenges women face
in achieving authentic equality.” In Ginsburg’s view, “authentic”
equality requires more than equal treatment under the law; it
requires the
forcible reallocation of private resources to pay for demands
such as contraception, higher pay, and maternity leave. This
vision can be described in various ways, but “libertarian” is not
one of them.