Prop. 8 and the Supremes: Which way will they go?
Friday, August 13, 2010
There has been a river of news stories and commentary about U.S. District Court Judge Vaughn Walker‘s recent decision overturning Proposition 8, but among the best I’ve seen is this overview and dissection by David Cole on the New York Review of Books blog, which takes the tack that the ruling was just (an analysis I share). He also does a solid job digesting the elements of the decision and putting them into different contexts through which the U.S. Supreme Court might ultimately view the case.
If Perry v. Schwarzenegger is upheld by the U.S. Court of Appeals for the Ninth Circuit, it is almost certain to be reviewed by the Supreme Court. And the outcome there very likely turns on a single Justice’s vote—Anthony Kennedy’s. There are probably four votes to strike down Proposition 8—Justices Stephen Breyer, Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan—but there are also almost certainly four votes to uphold it—Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. As is so often the case on controversial matters before the Supreme Court these days, everything turns on Justice Kennedy. Which way will he rule?
In the end, Cole thinks gay rights advocates have reason to hope that the Court will do the right thing.
Kennedy wrote both of the Court’s most important gay rights decisions—Romer v. Evans, (1996) which struck down a California referendum that barred adoption of laws banning discrimination on the basis of sexual orientation; and Lawrence v. Texas (2003), which overturned a Texas law making sodomy between same-sex partners a crime.
Still, “there is also ground for anxiety. Justice Kennedy went out of his way in Lawrence to stress that whether a state could limit marriage to opposite-sex couples remained an open question.”
And, as Cole points out, the Court has a history in which it “has never let the factual record get in the way of reaching its desired result.”
Interesting piece. Give it a read, and please share your own takes in the comments section.