What Will Anthony Kennedy Do on Gay Marriage? It's the question driving the entire Prop 8 train

[usregimechange]

When Judge Vaughn Walker decided Thursday to restart gay marriage in California as of Aug. 18, he turned what had been a tactical headache for supporters of Proposition 8, the voter referendum that banned same-sex marriage two years ago, into a strategic aneurism. Last week, the only issue they had to worry about was the lousy record they had produced for the appeals courts. They now have much bigger worries after Judge Walker's suggestion that the only group that may be willing to appeal his decision striking down Prop 8—not the state, but ProtectMarriage.com, which defended Prop 8 at trial—may may lack standing to do so. As Walker put it, "Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction." Emily Bazelon explains why the standing issue may derail the whole case. And if that happens, nobody will be happier than Justice Anthony Kennedy.

Maybe the possibility that the case will blow up over standing will also prove a blessing in disguise for the supporters of Prop 8. Last week, it seemed that the proponents of Prop 8 couldn't possibly fail to appeal even if they secretly wanted to; the political pressure to fight the Walker decision all the way to the highest court in the land would be too high. But on Thursday, audio circulated of fundamentalist activist David Barton speaking on Today's Issues on American Family Radio. As Barton put it, "right now the damage is limited to California only, but if California appeals this to the U.S. Supreme Court, the U.S. Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames" (presumably the states that have voted to reject gay marriage). Barton then continued: "There's an effort underway to say 'California, please don't appeal this. I mean, if you appeal this, it's bad for you guys, but live with it, but don't cause the rest of us to have to go down your path.' " Maybe this question over standing offers ProtectMarriage.com an escape hatch: a way to lose graciously and try to present a stronger case the next time.

Barton's trepidation over Kennedy has become contagious on the right. Last week John Eastman, a conservative law professor who supports Prop 8, told the Los Angeles Times that Walker's analysis would probably persuade Kennedy when the case came before the high court. James Taranto, writing last week in the Wall Street Journal, similarly predicted that "hen the Supreme Court takes up Perry v. Schwarzenegger—perhaps under the name Brown v. Perry or Whitman v. Perry—the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage." And perhaps the gay-marriage opponent most certain of Kennedy's vote is his colleague, Antonin Scalia. Dissenting from Kennedy's opinion in Lawrence v. Texas, the 2003 case striking down the state sodomy law, Scalia wrote that 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. …"

And yet the left is almost equally certain that Kennedy will vote not to create a constitutional right to gay marriage. Scott Lemieux wrote at the American Prospect that Kennedy's strong gay rights votes in both Lawrence v. Texas and Romer v. Evans did not predict a yes vote in Perry because of both "the breadth of the case and the level of public opposition." (Jan Crawford similarly told CBS News that even though Kennedy is a "human jump ball" in this case, "this is something that Anthony Kennedy doesn't do. He's a very cautious justice. He doesn't like to get ahead.") Andrew Sullivan has collected some representative samplings of others who likewise don't believe for an instant that Kennedy is seriously in play in this case.

http://www.slate.com/id/2263792/

[FreeState]

1. If it dies in CA I'd wager OR will have a case filed the next day n/t

[usregimechange]

2. Who knows, Kennedy may not be there by that time

[Warpy]

3. That's actually not the constitutional issue at stake

The constitutional issue is whether or not the majority can strip any minority of equal protection under the law.

If it's put that way, they'll be ruling on whether or not to institute mob rule in this country, something the framers wanted to avoid at all costs, although they failed to apply equal protection to women and people of color in the original document.

It will be interesting to see how it's argued. It will be fascinating to see how they rule.