California gay marriages may hinge on one man

[usregimechange]

The federal trial on the constitutionality of California's gay marriage prohibition, which voters passed in 2008, has been more a sociological and philosophical debate than a traditional evidentiary hearing.

The testimony and the opposing lawyers' arguments so far boil down to this: Some folks believe that same-sex couples should have the constitutional right to marry, and other folks deny there is such a right.

The debate is more philosophical than legal because this is virgin territory for the federal courts, no pun intended. Ultimately, it boils down to the personal views of the judges who will pass judgment as the case makes it way through the federal courts, even if they couch their decisions in dense legalese – and perhaps just one judge's views.

Gay marriage advocates may have hoped that challenging Proposition 8 in liberal San Francisco would give them an edge, but the case landed with Vaughn Walker, the chief district court judge who was appointed to the bench by Republican President George H.W. Bush two decades ago (after an earlier nomination was blocked by gay rights groups).

Walker has given no overt indication of how he leans. But regardless of what he decrees, the case is headed up the ladder to the decidedly liberal 9th U.S. Circuit Court of Appeals and then the U.S. Supreme Court. And if it makes it that far, Justice Anthony Kennedy may have the last word on whether barring same-sex couples from marrying is, indeed, a violation of their constitutional rights.

http://www.sacbee.com/capitolandcalifornia/story/2502324.html





"It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." -Justice Kennedy, LAWRENCE V. TEXAS (02-102) 539 U.S. 558 (2003).

http://www.law.cornell.edu/supct/html/02-102.ZO.html

He believes everyone has the right to privacy, what about marriage? He did not address this in Lawrence. Justice O'Connor went out of her way to tell us what she thinks about that in Lawrence: "Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage." Justice Kennedy made no such statement. He may think that corporations are persons and can have free reign to buy elections but it is not clear what his thinking is here. One thing is for sure, he is not the social authoritarian that his peers on the Right wing bloc of this court are.

[sharesunited]

1. Justice Kennedy is a constitutional majoritarian though.

Since marriage is not confined to the bedroom (i.e., a public institution), you can bet he would vote to uphold a proposition which a majority of the state's electorate has passed to define its meaning and limits within that state.