OC Political

After yesterday’s ruling from the U.S. Ninth Circuit Court of Appeals, Prop 8 supporters jeered, and Prop 8 opponents cheered.  The news showed jubliant same-sex marriage supporters celebrating the ruling and resolute traditional marriage supporters vowing to appeal.

In the May 2009 California Supreme Court ruling in Strauss v. Horton, the result was the opposite, with Prop 8 upheld.  The August 2010 U.S. District Court ruling in Perry v. Schwarzenegger struck down Prop 8.  Yesterday’s ruling by a three-judge panel of the U.S. Ninth Circuit Court of Appeals in Perry v. Brown upheld the District Court.  Prop 8 proponents have 90 days (well, technically, 89 as of this morning) to decide whether to appeal to an 11-judge en banc panel of the U.S. Ninth Circuit Court of Appeals or to appeal directly to the U.S. Supreme Court.

If there’s any lesson to be learned from all the court battles involving Prop 8, it’s that it doesn’t matter what a particular court rules, the side that wins hails the ruling as a historic victory in defense of the legal concepts they support while the side that loses vows to go to another court.  The only way this cycle ends is to take this to the highest court in the land: only the United States Supreme Court can decide this issue once and for all.

In all likelihood, U.S. Supreme Court Justices John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito will vote to uphold Prop 8 while Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan will vote to strike down Prop 8.  This means that whether marriage means one man and one woman or whether it means two people of any sex in California and in America rests in the hands of one man: U.S. Supreme Court Justice Anthony Kennedy.

There’s a certain irony that Kennedy will be the key to this issue, since Prop 8 comes from California, and Kennedy is a native Californian who spent the majority of his life in this state and was appointed to the Supreme Court by fellow Californian Ronald Reagan.  A Catholic educated at Stanford University and Harvard Law School, Kennedy was a lawyer in private practice and has been a law professor at McGeorge School of Law during his time as a lawyer and continuing to the present day.

Kennedy’s judicial track record does not make it clear how he’d come down on this issue.

In Beller v. Middendorf (1980), Kennedy (a Ninth Circuit Court of Appeals Judge back then) wrote the decision that upheld the ability of the U.S. Navy to discharge sailors for “engaging in homosexual acts.”  In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), he joined a unanimous Supreme Court opinion allowing the St. Patrick’s Day Parade to exclude an Irish gay group.

In Romer v. Evans (1996), Kennedy wrote the decision invalidating a Colorado ballot measure prohibiting sexual orientation from becoming a protected class (protected classes include race, religion, etc.).  In Boy Scouts of America v. Dale (2000), Kennedy voted to uphold the right of the Boy Scouts of America as a private organization to exclude gay men from being scoutmasters.

Both sides of the issue can find favorable parts of Lawrence v. Texas (2003), where Kennedy wrote, “the Texas [anti-sodomy] statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” but also wrote that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”  So Lawrence v. Texas tells us that Kennedy opposed attempts to regulate the conduct of consenting adults but also wanted to make clear that the decision did not affect marriage.

In Christian Legal Society v. Martinez (2010), Kennedy joined a court decision that allowed a public school to refuse recognition to a student group that wished to exclude gay members.

Kennedy’s dizzying array of court decisions leaves little clarity as to how he will rule.  However, there is little doubt that the fate of Proposition 8 and of the definition of marriage in California and America rests in the hands of one Californian above all others: Anthony Kennedy.