Anthony Kennedy and Prop 8: He Could Decide the Fate Of Gay Marriage

This could be the most pivotal yet for crusaders in the gay marriage fight. The Supreme Court on Tuesday will begin to hear oral arguments in a pair of same-sex marriage cases that could decide the future of marriage equality in America: the Defense of Marriage Act (DOMA) and Proposition 8. 

Up first is Prop 8. According Reuters, the Prop 8 challenge "could give the Court a chance to accept or reject a constitutional right to same-sex marriage, or issue a narrower ruling affecting only the nation's most populous state."

Voters passed Proposition 8 in California, during the 2008 election, banning same-sex marriages in the otherwise progressive state. 

Prop 8, then, becomes critical to the gay marriage challenge to the Supreme Court. With this case, the Court could potentially allow gay marriage to be accepted nationally (a huge win for gay marriage activists), or force gay marriage to remain a states rights issue (a big setback for gay marriage proponents, as it would turn some states and regions in the countries into anti-gay marriage holdouts).

The Washington Post on Monday night published an op-ed by its editorial board titled "Supreme Court Must Strike Down Proposition 8 and DOMA," and in that they predicted: "The justices can be expected to stop short of ruling so broadly that they would require every state to recognize same-sex marriage, when four-fifths of the states currently do not."

Who are the justices to watch in the Prop 8 case? Justice Anthony Kennedy probably holds the decisive vote in this one, and he is the author of the two leading gay rights cases. But he is notoriously hard to read. As The Atlantic notes: "Kennedy's jurisprudence, and I think his heart, say what many of us say: nothing is wrong with them. They are just like everybody else and deserve equal respect."

Kennedy's concept of liberty has included some protections for sexual orientation. He has a history of gay rights support, and has sided with liberal justices in gay cases before the Court. But in the 2000 case of Boy Scouts of America v. DaleKennedy voted, with four other justices, to uphold the Boy Scouts of America's organizational right to ban homosexuals from being scoutmasters.

Chief Justice John Roberts may be intrigued by the standing question, and his questions on that issue may suggest whether he might find dismissal on that ground an attractive offramp.

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