Same-sex marriage proponents have some reason for optimism. Kennedy wrote both of the Court’s most important gay rights decisions””Romer v. Evans, (1996) which struck down a California referendum that barred adoption of laws banning discrimination on the basis of sexual orientation; and Lawrence v. Texas (2003), which overturned a Texas law making sodomy between same-sex partners a crime.
But there is also ground for anxiety. Justice Kennedy went out of his way in Lawrence to stress that whether a state could limit marriage to opposite-sex couples remained an open question. He is, generally speaking, a conservative judge, appointed by President Reagan, and while he has been a strong defender of First Amendment rights, he sides with his more conservative colleagues much more often than he votes with the Court’s more liberal faction.
As a result, gay rights groups had been consciously pursuing a strategy of challenging same-sex marriage bans only in state courts, using only state constitutional arguments, as a way of building precedent and avoiding a Supreme Court loss.
Sigh. No discussion of how courts are limited to the evidence in front of them and the abysmal presentation by those defending the constitutional amendment. (Not to mention errors like the inability to tell the number of years between two years mentioned in the article — Lawrence came 17 years after Bowers, not 12.)
I would like to see an analysis of the case the defense presented. They were handicapped in that the State should have defended the law, but elected not to, and I understand that certain defense witnesses were intimidated. To the extent that the defense elected not to present a factual defense, I think think they made a big mistake. DavidH is right. The Court is limited to the evidence presented in Court, with some narrow exceptions of which the Court can take judicial notice.
Can someone explain to me why the defense in Cal. did such a weak, ambiguous, ill-structured job? This sort of unfocused stumbling cannot be taken before the Supremes. Larry
You guys are buying the propaganda that the defense did a poor job. When you you get a chance take a look at Ed Whelan’s analysis at NRO’s Bench Memos. Take for instance, the FOF by Judge Walker that same-sex marriage would not harm marriage. Walker said that the defense did not put on any “evidence” that marriage would be harmed. In fact, the defense provided plenty of material on the social significance and purpose of marriage. Walker just ignored it. Do you know what “evidence” Walker relied upon in order to reach the conclusion that “same-sex marriage” would not harm marriage? He relied upon a “study” from Mass. that found that the number of marriages for four years after “same-sex marriage”was imposed upon the people of Mass. was not significantly different then it was for four years before the decision. So, Walker redefined the basic institution of civilization based upon eight years of marriage data in Mass.