Justice Kennedy Sympathetic To Gay Marriage, But SCOTUS Wary Of National Legalization

Justice-Anthony-KennedyThe Justices of the Supreme Court were divided on the issue of gay marriage with Justice Anthony Kennedy (right) emerging as the likely swing vote.

Twice during the oral arguments, Kennedy questioned why the court had granted to hear the Prop 8 case, suggesting that his four conservative colleagues had pushed the issue.

According to the Los Angeles Times, if Kennedy has his way, the court would strike down California’s ban on same-sex marriage without broadly ruling on the issue:

Kennedy is likely to have the support of the court’s four liberal justices when they meet later this week to decide the California case. They could decide to write an opinion that strikes down the California ballot measure on the grounds that it denies same-sex couples a right to marry. Or they could vote to dismiss the appeal, which also would have the effect of voiding Prop. 8.

On several occasions, Kennedy and other justices said they were wary of ruling broadly in a way that would make gay marriage legal nationwide.

But at one point, Kennedy said upholding California’s ban on same-sex marriage would cause real harm. He said there were more than 40,000 children being raised by same-sex couples in California.

“It’s the voice of those children” that should be heard, he said. “They want their parents to have the full recognition” of marriage, he added.

While Kennedy, a California native and a proponent of both LGBT rights and states’ rights, appeared sympathetic to gay marriage, the four conservative justices remained vehemently opposed.

Chief Justice John Roberts stated that marriage has been limited to a man and a woman since “time immemorial.” Justice Antonin Scalia, unsurprisingly, said that he saw no grounds for declaring gay marriage a constitutional right while Justice Samuel Alito urged the court to move cautiously before redefining marriage.

Both Roberts and the more liberal Justice Ruth Bader Ginsberg questioned whether Prop 8’s sponsors have legal standing to defend it in the Supreme Court.

“Have we ever granted standing to the proponents of a ballot measure?,” Ginsburg asked, suggesting the court could dismiss the case on procedural grounds.

Get Queerty Daily

Subscribe to Queerty for a daily dose of #politics #gaymarriage #justiceanthonykennedy stories and more


  • Cam

    You left out the part where the plaintiff’s main argument were shot down by the court. That of marriage being for pro-creation and laughter emerging with the Justices asked then if CA should also outlaw marriage between people over 55 and the fact that Kenndy said that the 40,000 children living with gay couples needed to be heard and would be injured if their parents were not allowed to marry.

  • MikeE

    Someone should remind Chief Justice Roberts that marriage was between one man and MANY women since time immemorial.

    If his ideas on legality and the constitution involve going back thousands of years before the constitution was even written, then why not just have the SCOTUS simply bring back slavery and remove women’s right to vote?

    “Because it was so since time immemorial” is not, never was, and never WILL be a valid justification for a legal ruling.

  • alexoloughlin

    @MikeE: It still is legal in some islamic countries to have as many as four wives, Islam being the largest denomination in the world. Justice Roberts needs to check his facts. Polygamy is biblical if he cares to read the old testament and the qu’uran. Solomon had up to 300+ wives and concubines.

  • ait10101

    @alexoloughlin: Traditional marriage in South Africa allows many wives. SA also allows gay marriage. Swaziland allows an indefinite number of wives, but no gay marriage. I’ve wondered if there is discrimination against someone who already has multiple wives who immigrates to, say, Canada or the US.

  • David Gervais

    In Canada, yes. Once you are here, you can only have one wife (or husband). This issue has been ruled on in several ways, for example, a person cannot sponsor a second spouse for immigration as a spouse. That second spouse would have to qualify as an individual immigrant.

  • John Doe

    I have the opinion for a while that SCOUTS may choose to take a “back door” on either or both of these cases. Today’s arguments only seem to confirm my hunch.

    That being said, it is unfortunate that the Justices spent so much time talking about same-sex marriage being a relatively new thing, somewhat untested, etc. As far as I know, the 14th Amendment, guaranteeing equal protections, doesn’t require any litmus test concerning the social outcomes of equal rights. Either someone is being unconstitutionally discriminated against – or they’re not. The Constitution does say that equal legal rights can be denied if people don’t like the outcome.

  • John Doe

    Sorry for my grammar mistakes.

    * The Constitution does NOT say that equal legal rights can be denied if people don’t like the outcome.

  • Atomicrob

    I found some of the conservative justices comments quite disturbing and completely out of touch. I don’t hold much hope that things will turn in our favor in any major way, but lets see what they say regarding DOMA arguments tomorrow.

Comments are closed.