Send a Tweet
Most Popular Choices
Share on Facebook 7 Share on Twitter Printer Friendly Page More Sharing
OpEdNews Op Eds   

Handicapping the Prop 8 Appeal: A Photo Finish Horse Race

By       (Page 1 of 2 pages)   1 comment
Message James Nimmo

(OKLAHOMA CITY) There has been much constructive talk, as well as arm-chair quarter-back style blogging and blathering in conjunction withCalifornia's Prop 8 trial (Perry v. Schwarzenegger, whether this is a good time for Ted Olson and David Boies, working for the American Foundation for Equal Rights ( ),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 thestatute 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 US 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.(

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." (

Justice Kennedywrote the majority opinion in the case Romer v. Evans, 6-3,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 more broad 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 codecan 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 can not 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,

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 particularvdenomination 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 equalityare 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 partyof 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 notable to muster the "fire in the belly" needed to press for his court appointees. ( )

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.


Next Page  1  |  2

(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).

Rate It | View Ratings

James Nimmo Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

James Nimmo is active in progressive issues and believes no one should be denied their equality because of the accidents of birth and circumstances.
Go To Commenting
The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Writers Guidelines

Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
Support OpEdNews

OpEdNews depends upon can't survive without your help.

If you value this article and the work of OpEdNews, please either Donate or Purchase a premium membership.

If you've enjoyed this, sign up for our daily or weekly newsletter to get lots of great progressive content.
Daily Weekly     OpEd News Newsletter
   (Opens new browser window)

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

Hall-la-lou-lou-ing for Oklahoma's Senator Tom Coburn: Congress's Worst Person?

Oklahoma's Bigot-in-Chief has Learned Nothing in 10 years

How to Spell Equality? I before E except after C. L before G except Before B?

Catholic Church Expanding Beyond Roe v. Wade

Homo-Hater's Hubby Gets Outed in Phone Call

Forced Off the Edge of Life's Road

To View Comments or Join the Conversation:

Tell A Friend