Prop 8: Anthony Kennedy Will Be the Swing Vote That Strikes it Down


When the Supreme Court hears oral arguments later this month for Hollingsworth v. Perry, the fate of California's Proposition 8 will likely come down to the vote of Associate Justice Anthony Kennedy in a 5-4 decision striking down the gay marriage ban. While Kennedy has lost some clout as the swing vote after last summer’s Obamacare decision, the justice who in one term was in the majority of every one of the 24 5-4 decisions handed down by the court still remains the most likely swing vote on a polarized bench. And that’s good news for gay rights advocates. Kennedy’s tendency to favor personal liberties will lead him to strike down California’s gay marriage ban.

Since the retirement of Sandra Day O’Connor, Kennedy’s vote has been the most enigmatic on the court. He has provided the crucial vote in cases spanning the political gamut from voting to curtail the scope of federal government, writing the Citizens United opinion, but also ordering California to release prisoners from overcrowded prisons. And while his jurisprudence, or legal philosophy, may seem idiosyncratic, there are some visible patterns in the Reagan appointee's decisions.

In her 2009 book Tie Goes to Liberty, Grinnell College political science professor Helen Knowles argues that the Kennedy has drawn a clear line in favor of civil liberties. His hallmark case 2003’s Lawrence v. Texas, in which Kennedy found constitutional protection against sodomy statutes exemplifies his libertarian streak.

In his federal trial court opinion, District Court Judge Vaughn Walker made a strong appeal to Justice Kennedy’s independent streak. Walker’s opinion frequently cited Lawrence along with Kennedy’s majority opinion in Romer v. Evans, another landmark gay rights case. The court of appeals that sustained Walker's opinion 2-1, likewise appealed to Kennedy's Romer opinion. With the courts' focused plea, Kennedy would be loath to change course on gay rights.

Even if Kennedy votes with the majority to strike down the constitutional amendment, the court will likely look to limit the impact its decision has on other states. As the SCOTUSblog reports, the court could craft a rule that compelled gay marriage in just California, should it choose. Given the ability to only affect California and his history supporting gay rights in similar cases, look for Kennedy to strike down Proposition 8.