A
AALARD
Guest
Under the U.S. Supreme Court: Kennedy key to gay marriage
WASHINGTON, Now that a federal judge has blocked California's voter-enacted ban on same sex marriages, his injunction is expected to be favorably viewed by the federal appeals court where the case is headed now.
The 9th U.S. Court of Appeals, headquartered in San Francisco, is considered the most liberal of the 13 federal courts of appeal in the United States.
But what about the U.S. Supreme Court, where this or a similar future case is inevitably headed, where moderate conservative Justice Anthony Kennedy holds sway?
Any number of analyses show Kennedy voting in the majority in more than 90 percent of cases, more than any other justice. He votes mostly with the conservative bloc. Frequently, he is the pivot around which the four other conservative justices swing, often writing the majority opinion in 5-4 decisions.
Kennedy, 72, is a Roman Catholic, like all the other conservative justices on the high court.
So assuming the injunction survives argument in the 9th Circuit, will it be shot down in flames by the Supreme Court?
Judging by the past, maybe not.
At the core of the California case, as in many cases before the Supreme Court, is the 14th Amendment to the U.S. Constitution. The amendment was adopted in 1868 in part to keep the states from depriving freed slaves of citizenship.
Sections 1 and 5 are the ones most relevant to modern times. Section 1 contains the "citizenship clause," ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside" -- now criticized by Republican senators because it makes U.S. born children of illegal immigrants U.S. citizens); the "due process clause" (which guarantees fair treatment under the law) and the "equal protection clause" (which guarantees equal treatment under the law).
Section 5 gives Congress the authority to enforce the amendment, and for that matter, the Bill of Rights.
Back to the California case, voters in November 2008 approved the same sex marriage ban -- Proposition 8 -- by a 52.3 percent majority six months after the California Supreme Court ruled that same-sex marriage was permitted under the state Constitution. That same state court later upheld Prop 8 as a valid amendment to the state Constitution.
But on Aug. 4, in a case brought by two gay couples, U.S. District Chief Judge Vaughn R. Walker issued a preliminary injunction against the ban, saying it "both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."
Supporters of Prop 8 appealed, and Walker stayed his order until next Wednesday pending action by the appeals court. At the same time, he suggested the appeal by proponents could founder at the 9th Circuit because state officials are not involved in it.
In fact, it is conceivable that both the appeals court and the U.S. Supreme Court could rule that the private sponsors of Prop 8 do not have the standing to appeal Walker's ruling, only state officials do. Since California officials are not supporting Prop 8, Walker might end up with the last word until some similar case pops up.
But assuming the high court agrees to hear the case or some similar future case, what Supreme Court jurisprudence points to how the high court might rule?
WASHINGTON, Now that a federal judge has blocked California's voter-enacted ban on same sex marriages, his injunction is expected to be favorably viewed by the federal appeals court where the case is headed now.
The 9th U.S. Court of Appeals, headquartered in San Francisco, is considered the most liberal of the 13 federal courts of appeal in the United States.
But what about the U.S. Supreme Court, where this or a similar future case is inevitably headed, where moderate conservative Justice Anthony Kennedy holds sway?
Any number of analyses show Kennedy voting in the majority in more than 90 percent of cases, more than any other justice. He votes mostly with the conservative bloc. Frequently, he is the pivot around which the four other conservative justices swing, often writing the majority opinion in 5-4 decisions.
Kennedy, 72, is a Roman Catholic, like all the other conservative justices on the high court.
So assuming the injunction survives argument in the 9th Circuit, will it be shot down in flames by the Supreme Court?
Judging by the past, maybe not.
At the core of the California case, as in many cases before the Supreme Court, is the 14th Amendment to the U.S. Constitution. The amendment was adopted in 1868 in part to keep the states from depriving freed slaves of citizenship.
Sections 1 and 5 are the ones most relevant to modern times. Section 1 contains the "citizenship clause," ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside" -- now criticized by Republican senators because it makes U.S. born children of illegal immigrants U.S. citizens); the "due process clause" (which guarantees fair treatment under the law) and the "equal protection clause" (which guarantees equal treatment under the law).
Section 5 gives Congress the authority to enforce the amendment, and for that matter, the Bill of Rights.
Back to the California case, voters in November 2008 approved the same sex marriage ban -- Proposition 8 -- by a 52.3 percent majority six months after the California Supreme Court ruled that same-sex marriage was permitted under the state Constitution. That same state court later upheld Prop 8 as a valid amendment to the state Constitution.
But on Aug. 4, in a case brought by two gay couples, U.S. District Chief Judge Vaughn R. Walker issued a preliminary injunction against the ban, saying it "both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."
Supporters of Prop 8 appealed, and Walker stayed his order until next Wednesday pending action by the appeals court. At the same time, he suggested the appeal by proponents could founder at the 9th Circuit because state officials are not involved in it.
In fact, it is conceivable that both the appeals court and the U.S. Supreme Court could rule that the private sponsors of Prop 8 do not have the standing to appeal Walker's ruling, only state officials do. Since California officials are not supporting Prop 8, Walker might end up with the last word until some similar case pops up.
But assuming the high court agrees to hear the case or some similar future case, what Supreme Court jurisprudence points to how the high court might rule?
