Justice Anthony Kennedy and the Prop 8 ruling

According to Dahlia Lithwick at Slate, Judge Vaughn Walker’s decision to overturn California’s Proposition 8 will be difficult for the U.S. Supreme Court to reverse. That is because Walker appears to have written his opinion with one specific Supreme Court justice in mind:

I count — in his opinion today — seven citations to Justice [Anthony] Kennedy’s 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas’ gay-sodomy law). In a stunning decision this afternoon, finding California’s Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” quotes Walker. “‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation,” cites Walker. “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate,” Walker notes, with a jerk of the thumb at Kennedy.

Walker has temporarily stayed his ruling, which I expect we’ll be hearing about through the fall campaigns. 

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  • Brian Saint-Paul

    Brian Saint-Paul was the editor and publisher of Crisis Magazine. He has a BA in Philosophy and an MA in Religious Studies from the Catholic University of America, in Washington. D.C. In addition to various positions in journalism and publishing, he has served as the associate director of a health research institute, a missionary, and a private school teacher. He lives with his wife in a historic Baltimore neighborhood, where he obsesses over Late Antiquity.

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