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Handicapping the Prop 8 Appeal: A Photo Finish Horse Race

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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.

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James Nimmo is active in progressive issues and believes no one should be denied their equality because of the accidents of birth and circumstances.
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