Last Tuesday, Feb. 7 (if only it had been a week later), the Appellate Court of California upheld a ruling by Judge Walker which found the infamous love-hating Proposition 8 to be unconstitutional. Proposition 8 was a voter-approved ban on same-sex marriage in the state of California. The court ruled that this proposition, which was passed with 52 percent of the state’s vote, violated the equal protection rights of those who challenged the law.
The inevitable judicial decision will go down one of two paths. The first path occurs if the Supreme Court decides not to pull up the case. This means that the case is closed, and homosexuals will no longer be denied the right to marry in California. This is good in the short term, but still leaves the question unanswered whether the banning of homosexual marriage is really unconstitutional, because the Supreme Court could still weigh in on similar cases and overrule the decision.
On the other hand, if the Supreme Court does decide to rule on the case, which seems likely, the result could be very interesting. The most interesting factor of how the vote might actually turn out is Justice Anthony Kennedy. The conservative half of the court is made up of Justices Clarence Thomas, Antonin Scalia, Samuel Alito and Chief Justice Roberts. The liberal half is made up of Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Kennedy lies somewhere in the middle, and in all very close cases is the swing vote.
An old joke about the voting of Justice Kennedy is that he flips a coin, Scalia calls it, and that’s how Kennedy decides. This illustrates how inconsistent of a voter he can be: a coin flip for justice. It’s deeply troubling that one man’s inconsistent voting will provide the voice for a defining civil rights cause of our generation.
If we take a look at the 2002 case Lawrence v. Texas, we find that Justice Kennedy sided with homosexual rights, and drafted the majority opinion. Texas had passed a law banning sodomy and the Supreme Court struck it down. (Sound similar?) In his opinion, he used due process rather than equal protection when he stated: “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
This kind of reasoning on Kennedy’s part makes me think he may just vote on the side of the petitioners. If this does occur, and the court rules that the proposition is unconstitutional, then the debate on homosexual marriage will, for the most part, come to a close, until the lineup of the court gets switched around or a Constitutional Amendment challenges the decision.
If, however, they rule against the petitioners, then it will be a huge setback for homosexual rights in the country. Their only way out is the same: an amendment or a shift in the lineup.
The sad thing about this case (and many others), is that in what is supposed to be a democratic country, one man, one whom no one elected, is deciding the fate of thousands, eventually millions, of people he’ll never meet. Kennedy’s Catholic background may sway his vote, however, his swing vote did uphold Roe v. Wade in the 5-4 decision of Planned Parenthood v. Casey. The man is full of surprises, but I’m not sure he realizes how undemocratic his vote could potentially be.
