March 22, 2013

Anthony Kennedy — more than ever, the gay rights swing vote

As many expected, but of which one could never be sure until it happened, the Obama Administration officially filed an amicus brief earlier today in the California Proposition 8 appeal before the Supreme Court.

And, the verbal judo is clearly targeted at Justice Anthony Kennedy, who, despite a fairly consistent conservative vote pattern on anything involving business or money, is a moderate liberal on at least a certain amount of civil rights issues.

Here's the heart of the amicus:
The government’s brief concludes with a ringing denunciation of the California ban on same-sex marriage, which it said is based in “impermissible prejudice.” 

It then cited a concurrence in a 2001 Supreme Court case that said prejudice might not rise “from malice or hostile animus,” and might well be the result of “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” 

No matter, the brief said. “Prejudice may not, however, be the basis for differential treatment under the law.” 

The author of that concurrence is Justice Anthony M. Kennedy, who is expected to be a crucial voice within the court in both of the current cases. (That argument is similar to the one made in the administration’s brief in a second case before the Supreme Court concerning the Defense of Marriage Act of 1996.)
Will Kennedy mind being referenced so directly? Actually, he may be flattered; he's got one of the bigger egos on the court.

That said, will the trick work?

I'd say yes, in part because the Administration narrowly tailored the amicus to the state (pun intended) at hand, rather than going national.

I predict Kennedy votes as part of a 5-4 majority to boot Prop. 8. And, even if the ruling is tailored to California, it will be a precedent of sorts.

Update, March 15: Some indication of how Kennedy may be leaning might be inferred from the Nine giving the Department of Justice speaking time on its amicus brief.

Michael McConnell has a different tack. He notes that SCOTUS could, in the Prop. 8 case, find that the Californians suing to uphold it don't have legal standing. It's actually a strong argument legally.

Meanwhile, per Lyle Denniston and others, it looks like DOMA is toast, toast, toast. Again, Kennedy seems to be leading the charge on killing it in some way, shape or form.

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