Justice Anthony Kennedy Compares Marriage Uproar To Flag Burning Ruling

Supreme Court Justice Anthony Kennedy yesterday compared to the right wing uproar to his Obergefell opinion to the public outcry which followed the court's ruling that flag burning is a form of free speech. 

Kennedy, who was the deciding vote in both cases, described how the reaction decades ago was critical at first but changed over time. His remarks at the 9th Circuit Judicial Conference were his first public comments since he wrote the decision last month that put an end to same-sex marriage bans in 14 states. Kennedy drew the comparison in response to a moderator's question about how justices weather reaction to closely watched rulings. "Eighty senators went to the floor of the Senate to denounce the court," he said of the 1989 ruling. "President Bush took the week off and visited flag factories, but I noticed that after two or three months people began thinking about the issues."

Kennedy believes that controversial rulings such as Obergefell "draw down on a capital of trust" which the court replenishes with less controversial rulings.

A Prayer From Franklin Graham

Graham is tweeting a prayer about each justice this week. One per day.

Maggie Gallagher: Dear Justice Kennedy

"Dear Justice Kennedy: Government cannot confer dignity on our relationships. My best friends, my adult children, my godchildren, my brothers and sisters, every single intimate relationship that I have and that gives meaning to my life, government has no role there. To imagine that a government stamp of approval is what creates value in human relationships, or gives dignity to our sexual lives, is to accord to government a power it does not have: a power to impose an idea of equality that is not true, and to remove from the American people the hard work — of negotiating, compromise, and dealing with one another — that belongs to the democratic process, not the Constitution. Justice Kennedy, you’ve surprised us before. Do it one more time. If originalism doesn’t move you, perhaps an honest plea for pluralism from the newly stigmatized might?" - Maggie Gallagher, concluding an open letter to Justice Kennedy for the National Review.

NYT: Supreme Court Seems Deeply Divided

The New York Times weighs in:

The justices appeared to clash over not only what is the right answer in the case but also over how to reach it. The questioning illuminated their conflicting views on history, tradition, biology, constitutional interpretation, the democratic process and the role of the courts in prodding social change. Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John G. Roberts Jr. worried about shutting down a fast-moving societal debate.

Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same-sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching. Justice Stephen G. Breyer described marriage as a fundamental liberty. And Justices Ruth Bader Ginsburg and Elena Kagan said that allowing same-sex marriage would do no harm to the marriages of opposite-sex couples.

At the start of Tuesday’s arguments, Chief Justice Roberts said he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman. “If you succeed, that definition will not be operable,” the Chief Justice said. “You are not seeking to join the institution. You are seeking to change the institution.”

NOM: We're Encouraged About Kennedy

"I am extremely encouraged by the questioning, especially from Justice Kennedy, because it focused on what marriage is. It shows that the justices realize that marriage has existed for millennia and they have no constitutional basis to redefine it. The entire spectacle of the same-sex marriage litigation has undermined confidence in the judicial system as activist federal judges around the nation have taken it upon themselves to substitute their own views for the sovereign right of states, expressed through their voters and elected officials, to decide this issue. We call upon the US Supreme Court to put an end to this judicial tyranny by ruling forthrightly that there is nothing in the US constitution that prevents states from defining marriage in the law as it has existed in reality for millennia – the union of one man and one woman. Nobody can safely predict the outcome of a case like this on the basis of oral argument, but we are encouraged that the justices understand what is at stake – upending an institution that has served society well for millennia – and are hopeful that they will find that the constitution does not prevent traditional marriage laws. In doing so, they will restore to the people the power to decide the issue of marriage." - NOM chairman John Eastman, via press release.

Early Reports As Hearings Conclude

Johnson reports for the Washington Blade.

Uh Oh

Christian Blogger: I Love My Gay Moms But They Don't Deserve To Be Married

Two weeks ago Christian blogger Katy Faust earned praise across Teabagistan for her open letter to Justice Anthony Kennedy in which she declared her opposition to same-sex marriage despite loving her lesbian mother and her mom's partner. That letter followed her January collaboration with Robert Oscar Lopez in a SCOTUS brief which was widely reported upon by multiple anti-gay sites. Yesterday Faust took her crusade to the YouTube show Above The Paygrade.

(Tipped by JMG reader TJ)

Idaho Gov. Butch Otter To SCOTUS: Our Marriage Ban Doesn't Discriminate Because Gays Can Marry Opposite Sex

In a reply brief to Supreme Court Justice Anthony Kennedy, Idaho Gov. Butch Otter today declared that his state's ban on same-sex marriage does not discriminate against gay people because they remain completely free to marry any person of the opposite sex.

Respondents take offense at the notion that Idaho’s man-woman marriage definition does not discriminate on its face against gay men and lesbians. But that is true: Idaho’s marriage definition, under Article III, section 28 of its State Constitution, says nothing about sexual orientation — it merely specifies that any person can marry only a person of the opposite sex. It cannot be denied that, for a variety of personal reasons, gay men and lesbians can and sometimes do marry persons of the opposite sex.

More from the Spokesman-Review:

The reply brief makes it clear that the state plans to appeal only a subsidiary issue – the standard of review – to the Supreme Court, not the full question of whether same-sex marriage is unconstitutional. “The issue in this case will be presented in a way that does not require the Court to resolve conclusively the global question of whether the Fourteenth Amendment in any of its aspects bars a State from defining marriage as the union of a man and a woman,” the brief states, saying that makes it different from the seven petitions from five states that the high court refused to take up on Monday, thus legalizing same-sex marriage in those states and others in the affected circuits.

Essentially, the state is saying it wants the high court to take up a side issue, overrule the 9th Circuit on that, and then send the case back to the 9th Circuit to be argued again there with a different standard of review. Presumably, that would then lead to another appeal to the U.S. Supreme Court on the merits of the case, extending the process by months or years.

The state’s brief takes issue with the 9th Circuit’s ruling, saying that by applying “heightened scrutiny” to cases involving discrimination based on sexual orientation, a standard the 9th Circuit established in its earlier Smith-Kline case ruling, the circuit is creating new “suspect class” of people who can’t be discriminated against. “The decision below turns not on fundamental rights but on a single Ninth Circuit panel’s path-breaking holding that gay men and lesbians constitute a suspect class protected by heightened scrutiny,” the brief says. It says the 9th Circuit is “creating the first new suspect class in 30 years.”

The bolded portion tells the real story. Read the full brief. (Tipped by JMG reader Javier)

NEVADA: Marriages Are Back On

OREGON: Justice Anthony Kennedy Requests Stay Briefs From Both Sides

Via the Oregonian:

U.S. Supreme Court Justice Anthony Kennedy said Wednesday that he wants more information before ruling on an attempt by the National Organization for Marriage to halt same-sex marriages in Oregon. Kennedy asked for briefs to be filed by 1 p.m. Monday from the parties in the two lawsuits that led to U.S. District Judge Michael McShane's May 19 ruling that allowed gays and lesbians to marry in Oregon. Kennedy, who hears emergency appeals from the region that includes Oregon, could issue a ruling on NOM's motion on its own or pass the issue on to the full court. At a minimum, Kennedy's action means that he wants more information on the case before he makes a decision. But it's hard to know whether NOM has a strong shot for its argument that the Supreme Court should get involved in the Oregon case because of its unusual nature.

Money-laundering NOM chairman John Eastman says Kennedy's action "is a very good sign."