Gary Bauer Pessimistic on Justice Kennedy Upholding Traditional Marriage in Supreme Court Case

Justice Anthony Kennedy

Gary Bauer of the Campaign for Working Families PAC wrote the following in his “End of Day” newsletter December 10, 2012:

High Court To Decide Meaning Of Marriage

Late Friday afternoon, the Supreme Court announced it would hear arguments in two cases dealing with the meaning of marriage. From the cases selected, it appears as though the justices want to tackle the issue from both the state and federal perspective.

One comes from New York and challenges the constitutionality of the 1996 federal Defense of Marriage Act. The second case stems from a challenge to California’s voter-approved initiative Proposition 8, which defined marriage as the union of one man and one woman.

It is difficult to predict how the court will rule in either case. Some conservatives are cautiously optimistic about the Proposition 8 case, believing that the justices will find striking down a popularly-enacted law on something as basic as the meaning of marriage to be an affront to the right of self-government and the foundation of our republican form of government.

I’m not holding my breath. The Supreme Court is split with four reliable liberals, four generally conservative justices and one moderate, swing vote — Justice Anthony Kennedy. While Justice Kennedy sided with conservatives in the Obamacare decision, he has a long history of siding with the court’s liberals when it comes to abortion and homosexual rights.

For example, Justice Kennedy wrote the majority opinion in Romer v. Evans, which struck down a popularly-enacted ballot initiative in Colorado preventing special legal protection based solely on homosexual behavior [see text of Colorado Amendment 2 in footnote 2 HERE]. Justice Kennedy also wrote the majority opinion in Lawrence v. Texas, which struck down state laws against sodomy.

Kennedy’s reasoning in both cases was so sweeping, it seems highly unlikely that he could uphold marriage as the union of one man and one woman. In fact, Justice Scalia warned that because of Kennedy’s opinion in Lawrence, state laws against polygamy and same-sex marriage would be “called into question by today’s decision.” He may be right.

But the justices may have given themselves an “out.” Politico reports, “The justices told the lawyers in both cases to address whether the court can decide the central issues, given questions about the way the cases arrived at the court.” In others, they may decide to dodge the issue on a technicality.

Stay tuned. Oral arguments are expected in the spring, with a decision — if we get one — in June.

This article was posted on Wednesday, December 12th, 2012 at 12:25 am and is filed under "Civil Unions" & "Gay Marriage", "Civil Unions" & "Gay Marriage", "Sexual Orientation"/"Gender Identity" and the Law, Government Promotion, News, Supreme Court. You can follow any updates to this article through the RSS 2.0 feed.

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