Same-Sex Marriage Opponents Invoke Justice Kennedy
By MARK SHERMAN
Originally printed 5/15/2014 (Issue 2220 - Between The Lines News)
WASHINGTON (AP) - The pro-gay rights rulings of Supreme Court Justice Anthony Kennedy have been a key spark in the march toward legalized gay marriage. To counter the trend, same-sex marriage opponents now are seizing upon other opinions by Kennedy himself.
It was Kennedy who last month defended the right of voters to decide sensitive issues, in a ruling that upheld Michigan's ban on taking race into account in college admissions.
At least five states have invoked Kennedy's opinion in the Michigan case to argue that voters and elected officials, not judges, should choose whether same-sex couples can be married or have their marriages recognized within their borders.
"This case is not about how the debate about same-sex marriage should be resolved. It is about who may resolve it," Tennessee's governor and attorney general said in an appellate brief filed Thursday, using language lifted almost word for word from Kennedy's Michigan opinion.
The sentence merely substituted "same-sex marriage" for "racial preferences." Tennessee is asking the Cincinnati-based 6th U.S. Circuit Court of Appeals to undo a preliminary ruling that forced the state to recognize same-sex marriages from other states.
Michigan Attorney General Bill Schuette, who also defended the ban on consideration of race, said in a filing with the same appellate court on Wednesday, "As Justice Kennedy recently explained, 'it is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds."'
Schuette added, "There is no authority in the Constitution of the United States or in this court's precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters."
Lawyers in support of state and county officials in Oklahoma, Utah and Virginia have made similar arguments.
But fighting Kennedy with Kennedy may be an uphill battle. The 77-year-old justice has also written the high court's three strongly pro-gay rights decisions in the past 18 years, with powerful language about the dignity of gay and lesbian Americans and the humiliation felt by children who are being brought up by same-sex parents who may face discrimination.
In the most recent case, the court struck down part of the federal anti-gay marriage law in June, and Kennedy's opinion has since been cited in an unbroken string of lower-court rulings in support of same-sex marriage.
To be sure, Kennedy's opinion in that case, U.S. v. Windsor, did not strike down state laws against same-sex unions. It dealt only with a federal law that denied a range of marriage benefits to same-sex couples who were legally married. But federal judges have leaned heavily on its reasoning to strike down restrictive marriage laws, as have lawyers for same-sex couples.
Peggy Tomsic, representing same-sex couples in Utah, said the Michigan case confirms the distinction between policy, where deference to the voters by courts is appropriate, and individual constitutional rights. The Michigan case "did not and could not hold that voters can deny constitutional rights," Tomsic said in a letter to appellate judges in Denver. The Supreme Court has held that in regulating marriage, states must respect constitutional rights.
"That principle remains true whether marriage is regulated by state ballot initiatives or through ordinary legislation," Tomsic said.
In the first of the three high court rulings, in 1996, Kennedy wrote for the court's majority when it overturned a voter-approved Colorado constitutional amendment forbidding laws to protect gays and lesbians in the state. In the second, the court overturned state laws making gay sex a crime.
Judges on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, will weigh the competing writings of Kennedy when they hear argument on Tuesday over the Virginia prohibition on same-sex marriage.
- Women's Colleges Address Transgender Applicants
- In Apology To Trans Community, HRC Pledges Push For Broad LGBT Bill
- Third Circuit Court Upholds Conversion Therapy Ban
- Hawaii, Idaho, Nevada Gay Marriage Laws In Court
- 7th Circuit Court Of Appeals Strikes Down Marriage Bans
- 32 States Request SCOTUS To Settle Same-Sex Marriage
- Obama Names Lesbian As U.S. Chief Tech. Officer
- 7th Circuit Court Of Appeals Strikes Down Marriage Bans
- Joan Rivers Dead At 81
- First Federal Judge Rules Against Marriage Equality
- Transgender Teen To Sue SC Over License Photo
- Ram's Cut 1st Openly Gay Player Drafted, Cowboys Pick Him Up
- Kentucky City Considers Non Discrimination Law
- Indiana Gay Marriage Supporters Push Hard In 2014
- Book On Gay Steelworkers Prompts Union Changes
- California Bans 'Gay Panic' Defense
- Utah Plaintiffs Ask SCOTUS To Review Case
- First-Of-Its-Kind LGBT Jewish Curriculum
- Womyn Born Womyn House Staffer Edits Trans Identity Wikipedia Pages
- Carriagetown Antiqe Center
- Blue Moon Videos/DVD
- Foundations and Funders
- The Arcus Foundation/New York
- National Organizations
- Equality Forum
- Water Work Plumbing
- Religious & Spiritual
- Renaissance Unity Spiritual Center
- Social/Community Organizations
- A2 TNG (Next Generation of Kinkster)
- Lansing Association for Human Rights (LAHR)
- The Ark
Enter contests to win great prizes like CDs, DVDs, concert tickets and more
- Michfest Responds: We Have a Few Demands Of Our Own
- Q&A: Jennifer Hudson On Lesbian Rumors & Drag Queen Attitude: 'I Don't Care What You Think'
- LeAnn Rimes Q&A: 'Eddie & I Are A Gay Man's Wet Dream'
- Why Jason Mraz Won't Kiss & Tell: 'I've Spoken Up For The Things That Are Important To Me'
- Equality Michigan Stands With Allies: Seeking Full Inclusion
"The Ghosts in Our Machine" is a powerful 2013 feature documentary about animal rights, made accessible through the photos and personal journey of well-known international photographer Jo-Anne McArthur and lesbian filmmaker Liz Marshall.
This Week's Issue
Download or view this week's print issue today!
Sign up to receive our weekly newsletters today!