A Brief for Justice Kennedy

[William769]

THRILLING as it was to hear a sitting president endorse marriage rights for gay and lesbian Americans, there is one man whose opinion on the subject matters more than President Obama’s. Justice Anthony Kennedy is the likely deciding vote when this issue reaches the Supreme Court. More than anyone, he has the power to transform what is now a license bestowed by the more enlightened states into an all-American civil right.

Kennedy’s role as the court weather vane has given rise to a species of argument that Jeffrey Rosen, the George Washington University law professor, calls “the Kennedy brief,” in which “lawyers on both sides fall over themselves to court Kennedy’s favor by repeatedly citing the opinions of Justice Kennedy.” I’ve been trying to envision the Kennedy brief in defense of gay marriage.

There is plenty of Kennedy to cite on the subject. Although he is a devout Catholic, he is the author of the two most important pro-gay-rights decisions handed down by the court. In 1996, in a case called Romer v. Evans, Kennedy wrote an opinion ending Colorado’s attempt to repeal local laws protecting gays against discrimination. There was no plausible explanation for Colorado’s action, he wrote, beyond “animus” — judicial language for plain bigotry. In his 2003 majority opinion in Lawrence v. Texas, Kennedy and company threw out all remaining state laws against sodomy, saying that how consenting homosexuals express their love is none of the state’s business. (The verdict prompted Justice Antonin Scalia, in an indignant dissent, to warn that Kennedy’s argument “dismantles” any constitutional case against gay marriage.)

Now two lawsuits are inching toward the Supreme Court. The richer opportunity comes from California, where Proposition 8, banning gay marriage, has already been overturned by a three-judge panel of the United States Court of Appeals for the Ninth Circuit.

http://www.nytimes.com/2012/05/28/opinion/keller-a-brief-for-justice-kennedy.html?_r=1

A very good and informative read.

[joeybee12]

1. This is one area where Kennedy is not a senile old coot...

He must have some close gay relatives because his background otherwise would suggest he would not be so open to gay rights of any kind.