Tuesday, August 17, 2010

Anthony Kennedy and Prop 8

Arkes tells us exactly why Anthony Kennedy is the critical player.

...What is more striking here is that the resolution of the case was virtually determined by the premise planted in the law by Justice Anthony Kennedy in Romer v. Evans in 1996: The willingness to cast an adverse judgment on the homosexual life can be explained only by an “animus [lacking] a rational relationship to legitimate state interests.” Generations of reflection, running back to the ancients, could be dismissed as one long, thoughtless spasm of irrational “animus.”

With that premise planted, the arguments over Due Process or Equal Protection could be churned out in an instant. Due Process? People were suffering a harm, they were denied a benefit, their liberty to marry was being denied, on grounds that were irrational, and therefore arbitrary. Hence, the denial was unjustified, wrong. Equal Protection? Couples of the same sex were not accorded the same rights to marry as couples composed of men and women. Even if “domestic partners” were given many of the same benefits of marriage, they were treated as morally inferior, not worthy of marriage. They suffered a harm or wounding because they were treated unequally and for
no rational reason. Hence, the unequal treatment was unjustified, wrong.

Walker wrote his opinion with the express intent of capturing Kennedy's acquiescence, and of course, given Kennedy's "reasoning," that may well happen.


Dan said...

The CA. Supreme Court was unanimous in upholding Prop 8, if I remember correctly.
If the supporters of gay marriage could not convince the CA Supremes, how are they going to swa a majority of US Supremes?

Jim said...

Dan, a different case, a different venue, a different argument.

Dad, the plaintiffs brought a brilliant case and of course they took the long view. Judge Walker agreed with their case. How could he not? The defense team were morons.

What you have quoted here is the very essence of the 132-page decision. It's all right there.

Dad29 said...

Walker decided based on his projection that there was "bigotry" and "invidious discrimination."

Those statements are false, and actually risible.

But Walker had an agenda.

Frankly, it's possible that Walker's agenda was to submarine the homosex marriage bunch with his "findings," as SCOTUS will simply not accept them.

If that happens, SCOTUS reverses, and queer marriage is dead, dead, dead.