Friday August 6, 2010

Commentary: All Eyes on Anthony Kennedy and Prop. 8

By Peter J. Smith

WASHINGTON, D.C., August 6, 2010 ( – Should defenders of true marriage pin their hopes on the U.S. Supreme Court? Despite public displays of confidence from pro-family leaders that U.S. District Judge Vaughn Walker’s decision to strike down the natural definition of “marriage” on Wednesday will be overturned at the Supreme Court level, there is good reason to feel unease. The fate of marriage in the United States will likely come down to the vote of U.S. Associate Justice Anthony Kennedy, and more than one commentator has noted that Walker seems to have issued his ruling with the court’s swing vote in mind.

Dahlia Lithwick of Slate magazine observed Wednesday that Walker’s ruling striking down Prop. 8 as unconstitutional “trod heavily on the path Kennedy has blazed on gay rights.” It contained “seven citations to Justice Kennedy’s 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas’ gay-sodomy law).”

“Any way you look at it, today’s decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one’s own humanity,” wrote Lithwick. “The real triumph of Perry v. Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact.”

Rather than try Proposition 8 on legal merits, Judge Walker chose to hold a bench trial, inviting both sides to call expert witnesses to give testimony on the pros and cons of restricting the definition of marriage to two individuals of the opposite sex. One thing is for sure: whatever the legal arguments of ProtectMarriage, the sponsors of Prop. 8 (who had to defend the amendment because the governor and the attorney general of the state of California refused) were completely outgunned in terms of expert testimony. Their attorneys brought forward only two witnesses, compared to 18 witnesses summoned by Ted Olson and David Boies: meaning that as far as the factual record goes, the defendants have only one witness to every nine that the plaintiffs brought forward. And appeals courts usually give some deference to the findings of fact in a trial record when making their decisions.

How this will play in Anthony Kennedy’s book remains uncertain, but there will be a great deal of pressure on him to make judicial history. Were Kennedy to join the court’s liberal bloc in a 5-4 decision, he would be the senior of the majority, and get to write the decision.

The Wall Street Journal columnist James Taranto predicts that Walker’s ruling in Perry will stand, pointing out that Kennedy “has been consistent in taking a very broad view of the rights of homosexuals,” writing the majority’s decisions in Romer (1996) and Lawrence (2003) (see above). Writing in his “Best of the Web” column for Thursday, Taranto noted that Walker argued that the logic of Romer and Lawrence “leads inexorably to a finding that same-sex marriage is a constitutional right.” Associate Justice Anton Scalia, Taranto observed, warned that is exactly where Lawrence was going.

Taranto quotes Scalia from his 2003 dissent, where he stated, “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), ‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’ what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution’?”

Scalia ominously concluded, “This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.”

University of Utah Law Professor Clifford Rosky has a different take, but also noted that Walker was writing his decision almost as if he were speaking to Kennedy. Rosky told ABC 4 News in Salt Lake City that if Kennedy continues down the track of Roper and Lawrence “he could be the 5th vote to strike down Prop 8.” But Rosky sensed that on some level, redefining marriage was a bridge too far for Kennedy’s championship of homosexual rights.

“[I]t is not at all clear and in fact there were some signals in the most recent case that he wrote marriage was a different issue for him,” said Rosky.

Brian Brown of the National Organization for Marriage told on Thursday that the U.S. Supreme Court’s intervention on behalf of ProtectMarriage, by preventing Walker from changing the rules and turning the court proceedings into a televised Scopes-trial circus, gave them some hope. In any event, he stated that if a Kennedy majority legalized same-sex “marriage,” it would be absolutely necessary for Congress to intervene with a U.S. constitutional amendment protecting marriage.

In any event, the appeal will go to a three-judge panel of the 9th Circuit Court first. Three judges out of 29 will be randomly selected, creating the possibility that a conservative majority would overturn Walker’s decision. In any event, it is extraordinarily likely that the end of the road for the case will be with the U.S. Supreme Court and, ultimately, with Anthony Kennedy.

As all eyes turn to Justice Kennedy, it might be wise for those who believe in Divine Providence to pray for a man who holds a heavy burden in his hands: deciding the fate of marriage for a nation.

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