There are probably five justices who object to California’s anti-gay
Proposition 8 and who would prefer to see it struck down. Justice
Kennedy, the conservative viewed as most likely to provide the fifth vote for equality,
openly pondered whether Prop 8 violates the Constitution’s ban on
gender discrimination. Kennedy at one point admitted uncertainty about
whether there is sufficient evidence examining the effect of marriage
equality on society, but he then pivoted to note that the nearly 40,000
children raised by gay parents in California suffer “immediate legal injury” because of Prop 8. His vote is not entirely clear, but Kennedy leaned significantly in the direction of justice.
A weak performance by Charles Cooper, the lawyer defending
discrimination, probably went a long way to push Kennedy into the
pro-equality camp. When Justice Sotomayor asked Cooper to identify a
single example outside of marriage where discrimination against gay
couples could be “rational,” Cooper responded “I cannot,” prompting
Sotomayor to note that Cooper had more or less conceded that gay people
meet the definition of a class entitled to heightened protection under the Constitution.
Under longstanding precedent, a group which has experienced a a
“‘history of purposeful unequal treatment‘ or been subjected to unique
disabilities on the basis of stereotyped characteristics not truly
indicative of their abilities” enjoys enhanced protection under the
Constitution’s Equal Protection Clause.
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