BY JAMES NIMMO

There has been much constructive talk, as well as arm-chair quarterback-style blogging and blathering in conjunction with California’s Prop 8 trial [Perry v. Schwarzenegger, http://tinyurl.com/2utbpsd] – whether this is a good time for Ted Olson and David Boies, working for the American Foundation for Equal Rights [http://www.equalrightsfoundation.org/] to bring to the United States Supreme Court [SCOTUS] a case that could, if lost, set a precedent that would allow the religious right’s discriminatory dogma to remain on the statute books as settled law. These proscriptions would be enforced despite the First Amendment’s first clause that denies a legal haven for any particular religious belief.

Some of the squeamishness in presenting a same-gender marriage case to SCOTUS rotates around the center of the U.S. Supreme Court’s current composition, namely Justice Anthony Kennedy, well known as the “swing vote” in many of the single vote majority decisions of this highest court in America. SCOTUS is currently balanced with four justices each generally voting liberal or conservative with Justice Kennedy being the pivot. [http://en.wikipedia.org/wiki/Anthony_Kennedy]

Here is a golden nugget of gay equality history from Justice Kennedy’s prior time on the Ninth Circuit Court of Appeals, the position he held prior to his appointment to SCOTUS.

“LeBlanc requested a restraining order in federal court, and no less than now-Supreme Court Justice Anthony Kennedy was one of the two Ninth Circuit Court of Appeals judges who, while not ruling the ban itself was wrong [gays serving openly in the US military], surprisingly ordered the Marines either give him an honorable discharge or retain him until his case could go to trial. They chose the former.” [http://tinyurl.com/23ugk69]

Justice Kennedy wrote the majority, 6-3 opinion in the case Romer v. Evans that turned back the Colorado voter-passed Constitutional Amendment 2 that was the mother of anti-gay discrimination bills.

Colorado’s Amendment 2 was even broader than the subsequent marriage amendments in that it prevented any governing body in the state to offer legal protection to gay/lesbian citizens.

Again in a major victory for gay/lesbian equality, Justice Kennedy delivered the majority opinion, 6-3, in the Lawrence v. Texas case striking down sodomy laws that criminalized private, non-commercial, sexual activity between consenting adults.

Contrary to what flat-earth groups such as Focus on the Family or National Organization for Marriage want their followers to believe, having a voter-passed amendment added to any state’s Constitution or civil code can and has been overturned by a state or federal supreme court.

This principle of justice in the American legal system is vital to continued progress for recognition of gay/lesbian citizenship. Civil rights as outlined in the Constitution and Bill of Rights cannot be used as prizes in a majority voter raffle aimed at installing any particular religious or social view. Citizenship with its attendant responsibilities, obligations, and benefits should not be subject to partisan popularity.

As Judge Walker wrote in his unprecedented ruling overturning California’s Prop 8 gay discrimination amendment, “In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.” [p. 132, http://tinyurl.com/2utbpsd]

Just as racists are at perfect liberty to retain their moral disapproval of inter-racial marriage, just as die-hard religious fundamentalists can retain their belief that a particular denomination should write laws of the country, moral disapproval of gays and lesbians, as well as the content of our private lives, can continue to occupy their every waking moment as it has in the past.

The only thing that will change with the full recognition of gay/lesbian citizenship will be the diminution of diversity-deprived, sexually immature adults to impose their private thoughts and neuroses on the rest of the country.

Whether Justice Kennedy will be the deciding vote remains to be seen. His judicial philosophy indicates he adheres to precedent. His two opinions recognizing our gay/lesbian equality are good indicators of how he might vote in the inevitable appeal of Prop 8.

However, the health of Justice Ruth Bader Ginsburg is not strong. Considering the outcome of the November 2010 elections, the majority party of the Senate will be vital to the appointment of a successor to Ginsburg. In the two and-a-half years of the Obama Administration, the President has shown himself not able to muster the “fire in the belly” needed to press for his court appointees. [http://tinyurl.com/29xbhr4]

The two newest justices appointed by Obama, Sotomayor and Kagan, have not been on the Court long enough to have a reasonable record of voting to draw conclusions. Court appointees don’t always adhere to the expectations of the appointing president, Justice David Souter being a recent example. [http://en.wikipedia.org/wiki/David_Souter]

I strongly think the Prop 8 appeal will be decided not so much on the strong argument presented by Olson and Boies as much as on the accidents of health and political expediency. In other words, a real race to the finish.

– James Nimmo lives in Oklahoma City and is a regular contributor to The Oklahoma Observer

Further reading:

You can read more about Colorado’s Amendment 2 [Romer v. Evans] here: general information http://en.wikipedia.org/wiki/Romer_v._Evans and the SCOTUS decision http://tinyurl.com/24xa2oc

You can read about the overturning sodomy laws [Lawrence v. Texas] here: general information http://en.wikipedia.org/wiki/Lawrence_v._Texas and the SCOTUS decision http://tinyurl.com/mwu4ry