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Justice Kennedy's the one to watch in Proposition 8 case
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Site Admin  Joined: Wed Feb 11, 2009 1:30 am Posts: 648 Location: Rosarito, Baja California, MX 
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 Justice Kennedy's the one to watch in Proposition 8 caseJustice Kennedy's the one to watch in Proposition 8 case
By Michael Doyle mdoyle@mcclatchydc.com | Published: Sunday, Aug. 8, 2010 - 12:00 am | Page 3A WASHINGTON – Supreme Court Justice Anthony Kennedy will have something to say about California's gay marriage ban. That's when the landmark case will really get interesting. Kennedy's the one to watch, even if his name appears nowhere in a trial judge's 136-page opinion issued Wednesday striking down California's Proposition 8 ban on same-sex marriages. Nonetheless, the Sacramento native's previous decisions were cited 16 times in U.S. District Judge Vaughn R. Walker's ruling that Proposition 8 violates the U.S. Constitution. Walker's citations of Kennedy's work foreshadow the highly anticipated showdown that's expected to come when the U.S. Supreme Court finally considers gay marriage. "It seems the issue will clearly be close, and on close cases (Kennedy) tends to be in the middle," said Carl Tobias, a University of Richmond law professor. Kennedy wrote gay-friendly opinions in a 1996 case striking down a Colorado ballot measure and a 2003 case striking down a Texas law that banned gay sodomy. He says Kennedy hasn't tipped his hand on gay marriage, stressing that the 2003 decision "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." However, some hope – and some fear – that Kennedy's sympathies are already clear. Kennedy's opinion "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned," Justice Antonin Scalia wrote in a 2003 dissent. The Supreme Court could look different by the time the gay marriage case arrives, though. Some intervening steps, not all of them predictable, also may shape the case's outcome. A randomly selected three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals will review Walker's decision first. Eleven of the 9th Circuit judges then could review the appellate panel's work, in turn, in what's called an en banc decision. The appellate reasoning and the resulting posture of the case could nudge justices one way or another, though the Supreme Court never hesitates to show who's boss. During the last two years, the Supreme Court reversed 9th Circuit decisions in 22 out of 31 cases. The 9th Circuit's briefing schedule released Thursday calls for all briefs to be submitted by late December. Oral arguments will come later. Because the Supreme Court typically finishes setting its docket in mid-January, that means there probably won't be time to hear any appeal before the term ends next June. "We're talking the 2011 term," Tobias said. The position of at least one new justice, Elena Kagan, who was sworn in Saturday, may have been foreshadowed by her stand as Harvard Law School dean opposing the military's ban on gays openly serving. "I abhor the military's discriminatory policy," Kagan declared in a 2003 memo. "This policy is a profound wrong, a moral injustice of the first order." By 2011 there might be other court newcomers whose views will shape the outcome. The court's oldest member is 77-year-old Justice Ruth Bader Ginsburg, who's battled cancer several times. Justice Stephen Breyer is 71. Democratic presidents appointed Ginsburg and Breyer. Neither has hinted at retiring, but any voluntary retirement during President Barack Obama's term is likely to be a Democratic appointee. This conjures several retirement scenarios that could affect the gay marriage case. For instance: If Democrats lose some Senate seats this November, as appears likely, their weaker grip on the Senate could make Obama more prone to pick a moderate for the Supreme Court rather than an avowed liberal. Still, for the foreseeable future, Kennedy is likely to be the go-to justice. During the court's 2009-10 term, Kennedy was in the majority 82 percent of the time, according to a tally by the nonpartisan SCOTUSblog.com. This was more than any other justice. Kennedy has a tradition of being part of the court's winning 5-4 majority more than any other justice, though he wasn't in the previous term. Kennedy and his colleagues will be bound, in part, by the factual record. Here, opponents of Proposition 8 may have an advantage. Walker devoted some 54 pages of his opinion to "findings of fact," such as "stereotypes and misunderstanding have resulted in social and legal disadvantages for gays and lesbians." Appellate judges pay close attention to a trial judge's fact-finding, as appellate courts focus attention on legal analysis. "The resulting evidence," Walker wrote, "shows that Proposition 8 simply conflicts with the guarantees of the Fourteenth Amendment." That amendment guarantees U.S. citizens equal protection. Read more: http://www.sacbee.com/2010/08/08/2944686/justice-kennedys-the-one-to-watch.html#ixzz0w3EeHv00 |
| Sun Aug 08, 2010 2:49 pm |
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