clear
Wednesday May 25th, 2016 1:14AM

Same-sex marriage opponents invoke Justice Kennedy

By The Associated Press
WASHINGTON (AP) -- The pro-gay rights rulings of Supreme Court Justice Anthony Kennedy have been a key spark in the march toward legalized gay marriage. To counter the trend, same-sex marriage opponents now are seizing upon other opinions by Kennedy himself.

It was Kennedy who last month defended the right of voters to decide sensitive issues, in a ruling that upheld Michigan's ban on taking race into account in college admissions.

At least five states have invoked Kennedy's opinion in the Michigan case to argue that voters and elected officials, not judges, should choose whether same-sex couples can be married or have their marriages recognized within their borders.

"This case is not about how the debate about same-sex marriage should be resolved. It is about who may resolve it," Tennessee's governor and attorney general said in an appellate brief filed Thursday, using language lifted almost word for word from Kennedy's Michigan opinion.

The sentence merely substituted "same-sex marriage" for "racial preferences." Tennessee is asking the Cincinnati-based 6th U.S. Circuit Court of Appeals to undo a preliminary ruling that forced the state to recognize same-sex marriages from other states.

Michigan Attorney General Bill Schuette, who also defended the ban on consideration of race, said in a filing with the same appellate court on Wednesday, "As Justice Kennedy recently explained, `it is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.'"

Schuette added, "There is no authority in the Constitution of the United States or in this court's precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters."

Lawyers in support of state and county officials in Oklahoma, Utah and Virginia have made similar arguments.

But fighting Kennedy with Kennedy may be an uphill battle. The 77-year-old justice has also written the high court's three strongly pro-gay rights decisions in the past 18 years, with powerful language about the dignity of gay and lesbian Americans and the humiliation felt by children who are being brought up by same-sex parents who may face discrimination.

In the most recent case, the court struck down part of the federal anti-gay marriage law in June, and Kennedy's opinion has since been cited in an unbroken string of lower-court rulings in support of same-sex marriage.

To be sure, Kennedy's opinion in that case, U.S. v. Windsor, did not strike down state laws against same-sex unions. It dealt only with a federal law that denied a range of marriage benefits to same-sex couples who were legally married. But federal judges have leaned heavily on its reasoning to strike down restrictive marriage laws, as have lawyers for same-sex couples.

Peggy Tomsic, representing same-sex couples in Utah, said the Michigan case confirms the distinction between policy, where deference to the voters by courts is appropriate, and individual constitutional rights. The Michigan case "did not and could not hold that voters can deny constitutional rights," Tomsic said in a letter to appellate judges in Denver. The Supreme Court has held that in regulating marriage, states must respect constitutional rights.

"That principle remains true whether marriage is regulated by state ballot initiatives or through ordinary legislation," Tomsic said.

In the first of the three high court rulings, in 1996, Kennedy wrote for the court's majority when it overturned a voter-approved Colorado constitutional amendment forbidding laws to protect gays and lesbians in the state. In the second, the court overturned state laws making gay sex a crime.

Judges on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, will weigh the competing writings of Kennedy when they hear argument on Tuesday over the Virginia prohibition on same-sex marriage.
© Copyright 2016 AccessWDUN.com
All rights reserved. This material may not be published, broadcast, rewritten, or redistributed without permission.
Judge denies motions to move, delay Tsarnaev trial
Lawyers for Boston Marathon bombing suspect Dzhokhar Tsarnaev asked a federal appeals court Wednesday to overturn a judge's decision to not move his upcoming trial out of state.
10:02PM ( 1 year ago )
High court to adopt electronic filing of cases
The Supreme Court is belatedly developing an electronic filing system similar to those used in courts around the country, Chief Justice John Roberts said Wednesday in his annual end-of-year report.
7:57PM ( 1 year ago )
Storm brings snow, cold to West for New Year's
A blustery winter storm dumped snow and ice across the West on Wednesday, making driving treacherous in the mountains from California to the Rockies and forcing residents and party-goers in some usually sun-soaked cities to bundle up for a frosty New Year's.
5:19PM ( 1 year ago )
U.S. News
Grass fire impacts rush hour traffic on 985
Rush hour traffic on I-985 was slowed by a grass fire Wednesay afternoon with one lane closed while firefighters fought the blaze.
10:19PM ( 1 year ago )
Hall County conviction, sentencing to be reviewed by SCOGA
The State Supreme Court has agreed to hear the appeal of a Hall County man when they reconvene in January.
2:37PM ( 1 year ago )
Local/State News
Committee leaves transportation funding to lawmakers
Georgia will have to cover a $1 billion to $1.5 billion transportation funding gap to stay economically competitive, a committee of lawmakers is warning in a report issued Tuesday.
5:36AM ( 1 year ago )
US off war footing at year's end, but wars go on
Taking America off a permanent war footing is proving harder than President Barack Obama may have suggested.
6:13PM ( 1 year ago )
GOP leader regrets talk to white supremacists; party leaders rally around him
House Republican leaders rallied around one of their own, Whip Steve Scalise, on Tuesday after he said he regrets speaking 12 years ago to a white supremacist organization and condemns the views of such groups.
6:08PM ( 1 year ago )
Politics
Amid shouts of 'shame,' House GOP defeats gay rights measure
Democrats shouted "shame," but House Republicans switched their votes and defeated a measure to protect gay rights
8:03PM ( 5 days ago )
CDC director Freiden warns GOP Zika bill is inadequate
The head of the Centers for Disease Control and Prevention warned Wednesday that a House GOP measure to combat the Zika virus is inadequate to deal with the swelling threat to public health
7:36PM ( 6 days ago )
Trump unveils list of his top picks for Supreme Court
Donald Trump, the presumptive Republican nominee for president, released Wednesday a list of 11 potential Supreme Court justices he plans to vet to fill the seat of late Justice Antonin Scalia if he's elected to the White House.
3:31PM ( 6 days ago )
1st US penis transplant could bring hope to maimed soldiers
A 64-year-old cancer patient has received the nation's first penis transplant, a groundbreaking operation that may also help U.S. veterans maimed by roadside bombs
8:04PM ( 1 week ago )
States dig in against directive on transgender bathroom use
Politicians in Texas, Arkansas and elsewhere are vowing defiance over the Obama administration's new directive on transgender bathroom use
9:19PM ( 1 week ago )