Predicting Kennedy

By Seana Cranston J.D. | August 5, 2010

At today’s Daily Dish, Andrew Sullivan asks, “What Will Justice Kennedy Do?” and links to another post by Nate Silver at FiveThirtyEight, in which Silver surmises that, when yesterday’s decision in Perry v. Schwarzenegger “eventually makes its way to the Supreme Court, we know almost for certain that three Justices are going to vote to uphold the lower court’s decision that gay marriage bans violate the U.S. Constitution, and three Justices are going to vote to overturn it.”

Silver further argues that “in 50 years’ time, American society will almost certainly regard the plaintiff’s position (the Constitution does not permit discrimination in marriage on the basis of sexual orientation) as the right one,” and therefore “[Justice Kennedy’s] legacy would be better served by casting the decisive vote in favor of the plaintiffs.”

Although Sullivan and Silver do not specifically address the issue, it’s a safe bet that, (if Lawrence v. Texas is any indication) if Perry does end up at the Supreme Court, and Justice Kennedy casts the decisive vote and/or writes the opinion, it will be chock-full of references to foreign law.

In Lawrence v. Texas, 539 U.S. 558 (2003), the decision in which Justice Kennedy wrote the majority opinion that struck down a Texas anti-sodomy statute, Justice Kennedy placed a heavy emphasis upon foreign law, specifically the European Convention on Human Rights, stating that:

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ ;52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

Id. at 573.

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