Posted by Curt on 28 April, 2015 at 10:39 am. 4 comments already!



Imagine if this case ends up as a re-run of the ObamaCare ruling, with squishy Anthony Kennedy shocking everyone by joining the conservatives Scalia, Thomas, and Alito — only to have John Roberts form a majority with the Court’s four liberals. Old CW: Roberts is the worst Republican pick since Souter! New CW: Roberts is the worst Republican pick since Brennan!

Nah, just kidding. Rest assured, this morning’s lip service about “millennia” of tradition aside, Kennedy will be voting with the lefties this time. The only suspense is over whether it’ll be 5-4 or 6-3.

At the start of Tuesday’s arguments, Chief Justice Roberts said that he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman. “If you succeed, that definition will not be operable,” the Chief Justice said. “You are not seeking to join the institution. You are seeking to change the institution.”

Justice Kennedy, who many consider the likely swing vote on the case, weighed in with skepticism as the advocates for gay marriage made their case. He said the definition of marriage “has been with us for millennia.”

“It’s very difficult for the court to say, ‘Oh, we know better,’ ” he said.

How do we know he’s not terribly serious about that? Because he’s dismissed arguments grounded in tradition in other landmark gay-rights cases. Hist most famous opinion for the court came in Lawrence v. Texas, a challenge to Texas’s law outlawing sodomy between gays. The Supreme Court had upheld a state sodomy ban less than 20 years earlier, in Bowers v. Hardwick. Needless to say, there’s lots and lots and lots of tradition behind criminalizing gay sex acts, both here in the U.S. and abroad, and backed by plenty of majority support historically. That didn’t stop Kennedy from striking down the Texas statute and tossing out the Court’s own precedent in Bowers on grounds that he and the rest of the majority did in fact “know better.” Why wouldn’t he do the same thing here? Also, while it’s true that Kennedy’s opinion in the Windsor case two years ago struck a federalist note in nuking part of DOMA because the states, not the feds, get to define marriage, it’s not true that Kennedy typically defers to state majorities in gay-rights cases. As I say, he tossed out a duly enacted sodomy statute in the Lawrence ruling on grounds that it violated the petitioner’s due process rights. Years earlier, in Romer v. Evans, he struck down a statewide popular referendum in Colorado as a violation of the petitioner’s right to equal protection. In matters of gay rights, when an individual runs up against a state law, Kennedy reliably sides with the individual. The point in Windsor about states getting to define marriage instead of the feds was really just his way of striking down part of DOMA without going the whole nine yards and finding that individuals have a right to gay marriage that neither their state government nor the federal government can deny. Kennedy knew he’d get to rule on that much broader question eventually, i.e. this summer. No need to rush into it.

In fact, the NYT notes that later in this morning’s oral arguments, Kennedy “expressed qualms about excluding gay families from what he called a noble and sacred institution.” Audio of the arguments has already been posted; there are more arguments set for this afternoon. I’ll update later if he says anything that suggest he’s showing his cards, but it would be one of the great shocks in modern American jurisprudence if this guy, given his track record of landmark libertarian-ish pro-gay rulings, suddenly turned around and stiffed lefties on the biggest gay-rights case of them all.

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