In a way, the future of marriage equality is in the swing-voting hands of Justice Anthony Kennedy. Thereâ€™s a good chance Kennedy will vote with liberals on the two marriage cases pending before the court.
Thatâ€™s mostly because he led the majority in two landmark gay-related cases: Lawrence v. Texas (overturning sodomy laws in 2003) and Romer v. Evans (overturning the anti-gay initiative Amendment 2 in Colorado in 1996).
But Kennedy has also expressed reluctance about getting to the merits of the challenged marriage lawsâ€“Proposition 8 and Defense of Marriage Act. And he has recently said he believesÂ too many contentious issues are being thrown into the high courtâ€™s lap to decide. Recently, heâ€™s seemed to take a swing to the right. Perhaps years of attack from conservative commentators deeply unhappy with the pro-gay opinions have gotten to him. Or perhaps he’s just aging in that direction.
And in the last gay-related case before the court, Kennedy sided with freedom of speech for Kansas evangelist Fred Phelpsâ€™ gang to spew anti-gay hate epithets within earshot of a soldierâ€™s funeral. That, of course, was purely a First Amendment decision–and not a comment on the repugnance of the Phelps clan’s antigay tactics.
Weâ€™ve gone back and taken a look at how all the justices have voted on gay-related cases, where a vote can be discerned, over the past 30 years. And weâ€™ve looked at how often theyâ€™ve been clustering around the traditional liberal-conservative poles in the current session. Hereâ€™s what we think the odds look like, statistically speaking, for Kennedy and some other factors to weigh in when considering his vote:
Percent voted pro-gay: 70
Percent voted with liberal wing: 45
Odds he’ll vote for two pro-gay decisions: 3 to 2
Appointed by: President Reagan
Most notable cases: Romer v. Evans and Lawrence v. Texas, he wrote the majority decision in both landmark victories for civil rights for LGBT people.
Interesting factoid: He is not Robert Bork. Bork, a right-wing extremist, was Reaganâ€™s first choice. Douglas Ginsburg, who smoked pot, was his second choice. Kennedy was the lucky third.
Notable remark during Prop 8 argument: â€œThere’s a substantial question on standing.â€
Notable remark during DOMA argument: â€œThe question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.â€
Lisa Keen, co-author ofÂ Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available atÂ KeenNewsService.com.