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View Diary: Let us now praise Justice Anthony Kennedy (50 comments)

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  •  if it were just up to Kennedy ... (6+ / 0-)

    we might actually have same sex marriage in all 50 states now ... according to several sources ....

    here's one link:

    http://features.blogs.fortune.cnn.com/...

    ... More likely is that -- as chastening as it might seem to those of us who try to assign justices neat political pigeonholes -- they (Ginsburg, Breyer, Kagan) were actually more reluctant than Kennedy to issue a sweeping, disruptive ruling, overturning the laws of 38 states ...
    I've read several other discussions re. this (can't find other sources now but http://www.scotusblog.com/... provided several good links in the weeks after the June 26 decisions ...) which allude to the above dynamic, and it's my personal opinion that, in all likelihood, Kennedy wanted to go even further than what transpired on June 26.
    •  I think so! (2+ / 0-)

      If you look at the conclusion of Windsor it's about ALL of DOMA, not just section 3. Wouldn't it have been fun if he had prevailed on that.

      Seneca Falls, Selma, Stonewall

      by Dave in Northridge on Mon Sep 02, 2013 at 11:27:00 AM PDT

      [ Parent ]

      •  yes, indeed! (3+ / 0-)

        and I think, if push came to shove (let's say theoretically that the only two legal outcomes to all this back in June were no same sex marriage at all vs. same sex marriage everywhere) then Ginsburg/Breyer/Kagan would have joined Kennedy and Sotomayor in ssm expansion nationwide ...

        perhaps, a few years down the road (once there's more of a national consensus on this nationwide) we get equality everywhere (assuming a similar makeup of the Supreme Court) ... Windsor certainly has the seeds planted within the opinion to make this so ...

        •  That's going to be faster than you think. (3+ / 0-)

          Within five years, probably within two.

          Right now, it's a legal hash, with couples getting married in some states and being locked out of divorce should they move to states that don't allow same-sex marriage.  That simply cannot stand.  From a purely pragmatic level--not even a constitutional one--the current field is a crazy quilt of incoherence.

          Add to it the Full Faith & Credit Clause, and the Fourteenth Amendment, and Windsor, and Romer, and Lawrence...

          ...it's gonna be quick.

    •  I don't think Kennedy was ready to go that far (2+ / 0-)

      But I think he was ready to strike down every state referendum that banned gay marriage in the Prop 8 case on the grounds that such referenda are animus against gays and lesbian.  (Note that this  doesn't imply a fundamental right to marriage equality, it simply means that states would not be permitted to amend their state constitution to discriminate against gays.)  And it is likely then that Oregon and Colorado would have passed marriage equality legislation.

      Unfortunately due to the standing issue, it didn't happen yet.  OTOH, the standing issue will make it easier for states with D Governors and Attorney Generals to refuse to appeal anti-gay laws and get around hostile legislatures.  So I guess it can go both ways.

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