Same-Sex Marriage Update

Rook · 08-04-2010, 05:49 PM

I kind of like a BumperSticker I saw on the way home today

"When Religion Rules the world, we'll call it the Dark Ages"

MsTinkerbelly · 08-04-2010, 05:55 PM

Analyzing the Prop 8 WIN: A Few Large Points
(I want to introduce my husband, Brian Devine. He’s an attorney that practices civil litigation attorney in San Francisco. We were married back in September 2008, when marriage was legal. We are both hopeful that we’ll get to attend many more weddings. – Brian Leubitz)

By Brian Devine

Judge Vaughn Walker issued a decision today overturning Proposition 8, finding that it violates both the Due Process Clause and the Equal Protection rights in the United States Constitution. Here’s a full copy of the 138-page decision.

Most of the decision (the first 109 pages) is the “factual findings.” This is crucial, and here’s why. On appeal, Judge Walker’s conclusions of law are basically irrelevant. Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference. On the other hand, only a trial court can make factual findings. A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony. Judge Walker knows this. He knows that his primary role in this case is to weigh the credibility of the evidence that was presented at trial and apply the facts that were proven to the law. But the law–unlike the facts–ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court.
In a big victory for marriage equality, Judge Walker found that the “strict scrutiny” test applies to the Due Process analysis. As its name implies, this is the most stringent of the tests that can be used to determine if a law satisfies the Due Process Clause. To satisfy “strict scrutiny,” the State must show that the law is “narrowly tailored to a compelling state interest.” On the other hand, the most relaxed standard–and the one that the anti-equality crowd argued should apply–is “rational basis review.” Under “rational basis review,” the Court will uphold a discriminatory law if the State has any rational reason for having the law. Judge Walker found that the “strict scrutiny” test applies instead of the “rational basis” test because marriage is a fundamental right. When the State takes away a fundamental right, it must have a compelling reason to do so. But going even further, Judge Walker found that even if the Prop 8 proponents were right and the “rational basis” test should apply, Prop 8 still does not pass muster. Finding that Prop 8 does not even pass the “rational basis” test, Judge Walker easily found that it could not pass the compelling interest requirement of strict scrutiny.

Turning to the Equal Protection claim, Judge Walker’s analysis is essentially the same as for Due Process. First, he found it unnecessary for the Court to determine which of the three tests (rational basis, intermediate review, or strict scrutiny) should be used to conduct the Equal Proection analysis because Prop 8 cannot satisfy rational basis review, the most relaxed of these standards. Although Judge Walker finds that the evidence shows that “strict scrutiny” probably applies, he found that he did not need to reach that decision. Second, Judge Walker goes on to show in detail why each of the arguments advanced by the Intervenors fails to provide a rational basis for Proposition 8:

•Intervenors argue that maintaining the traditional notions of marriage being between a man and a woman is a rational reason for Prop 8. Judge Walker responds by citing a 1970 U.S. Supreme Court case and says: “Tradition alone, however, cannot form a rational basis for a law.” He went on to say:
Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

•Intervenors also argued that because same-sex marriage is such a sweeping social change, California has a rational basis to implement this change incrementally. In other words, it should be allowed to first offer domestic partnerships before marriage. Judge Walker rejected this argument, finding that “The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to ntegrate same-sex couples into marriage.
•Losing touch with reality, Intervenors’ next absurd argument is that the state has a rational basis to reserve marriage for opposite-sex couples because they’re better parents and the state should promote procreation within an opposite-sex marriage. Judge Walker easily dismisses this drivel by finding that the evidence proves: “(1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.
•Going further afield into crazyland, Intervenors next argue that the state has a rational basis in protecting bigots rights to take away rights from people they don’t like. Holding in his laughter, Walker responds: “Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” Can we get a Hallelujah!
•Intervenors next argue that there’s a rational basis in calling different things by different names. They argue that it would be an administrative burden to have the same name for both opposite and same-sex unions. And imagine the chaos that would ensue if someone said that they were married and you later discovered they were a GAY! Judge Walker responds: “Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples.”
After rejecting each of the Intervenor’s arguments as to why a rational basis exists for Prop 8, Judge Walker went on to find that in the absence of a rational basis, it is safe to assume that Prop 8 exists because some people just don’t like gays and lesbians:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief hat a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is ot a proper basis on which to legislate.

One quote from the decision that really sums up the feelings of many who believe in equality is:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” (Quoting a 1943 U.S. Supreme Court case)

The long and well-reasoned decision concludes with this short and sweet determination that the couples who challenged Proposition 8 are correct:

REMEDIES

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED.”

The elephant in the room is now the question of a stay. Yesterday, in anticipation of losing, the anti-equality Intervenors filed a motion asking the Court to stay its decision pending appeal. In other words, they argue that since an appeal is inevitable, the Judge should not enforce his ruling until after the inevitable appeal is exhausted. Judge Walker has not yet ruled on that motion. Even if Judge Walker denies the stay, the Intervenors will ask the Ninth Circuit Court of Appeal to issue an immediate stay of the decision. In a case like this, a stay is very likely. It remains to be seen whether Judge Walker will grant the stay or if that issue will be decided by the Ninth Circuit.

*UPDATE* CNN is reporting that Judge Walker issued a stay. But there is no Stay Order in the Court’s docket as of this writing, only the motion by the Intervenors. I suspect CNN may have gotten ahead of itself and is publishing unconfirmed rumors. That being said, I think a stay is likely at some point (probably by the Ninth Circuit.)

*UPDATE* The Court just entered an Order shortening time for Intervenors’ motion to stay to be heard. Plaintiffs’ must file their opposition to the Intervenor’s motion to stay Friday, August 6th. The Court will decide the motion on the papers without a hearing. I suspect an order will issue very shortly after the opposition is filed, probably by Monday or Tuesday. In the interim (i.e. in the next few days until the Court rules on the Motion to Stay), the entry of the Judgment is temporarily stayed

Bolded is the part I found mst interesting....

Cyclopea · 08-04-2010, 05:57 PM

Quote:

Originally Posted by Rook

I kind of like a BumperSticker I saw on the way home today

"When Religion Rules the world, we'll call it the Dark Ages"

I like the one that says something like:

"A recent California vote found that there is a 52% chance you're an idiot"

iamkeri1 · 08-04-2010, 06:25 PM

I am so happy for all you lovely Californians!!!!!!!

I want to be happy for all of us in the USA. May this decision soon be supported at the supreme court (US) level so that we all are free.

I will be there with you in spirit waving my freak flag high.
Smooches,
Keri

:fireworks :

Corkey · 08-04-2010, 06:33 PM

http://www.foxnews.com/opinion/2010/...tion-decision/

Go vote and show Faux nuts that we support the decision.

Soon · 08-04-2010, 06:54 PM

Corkey · 08-04-2010, 06:55 PM

Just found out you can vote often.......clickety click........Againnnnnn!

Soon · 08-04-2010, 07:10 PM

How Will the Supreme Court Rule on Same-Sex Marriage?

Adam Winkler
Professor at UCLA School of Law

Wednesday's landmark decision by a federal court that California's ban on same-sex marriage violates the U.S. Constitution begins to pave the way for an eventual Supreme Court decision on marriage equality. How will the Supreme Court rule?

When the California case was first filed by the all-star legal team of Ted Olson -- who argued Bush v. Gore for George W. Bush and then became his Solicitor General -- and David Boies -- who, ironically, represented Al Gore in the disputed presidential contest -- the leading gay rights organizations, joined by the ACLU, came out against the lawsuit. They shared Olson and Boies's goal of securing marriage equality, of course, but they feared what the conservative Roberts Court might do. A strong Supreme Court decision against gay marriage would create a precedent that would take decades to undo. With our society moving generally in the direction of more tolerance for gays and lesbians, activists wanted to wait a few more years before bringing a case to the high court.

But gay rights activists may have been too pessimistic about the current Supreme Court. It's true that the Roberts Court is conservative and that several Justices are unlikely to be open-minded about same-sex marriage, including the four most right-leaning Justices: Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito. On the other side of the bench, there are four Justices likely to be favorable to Olson and Boies's argument that the denial of marriage rights to same-sex couples violates the Constitution: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (assuming she is confirmed).

As usual in the Supreme Court these days, the swing vote belongs to Anthony Kennedy. And there are several reasons to believe that Kennedy, though conservative on many issues, will vote with the liberals on this one. The Supreme Court has issued two major decisions dealing with gay rights over the past 15 years. Both decisions came out strongly in favor of gay rights -- and both were written by Justice Kennedy.

In one of those decisions, Lawrence v. Texas, which held that bans on consensual sexual activity among same-sex partners were unconstitutional, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and other "family relationships." "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes," Kennedy wrote, "just as heterosexual persons do."

These words suggest Justice Kennedy believes that gays and lesbians should have the same rights and privileges as heterosexuals. Of course, no right that heterosexuals enjoy is denied more often to gays and lesbians than marriage.

Justice Kennedy is also known to be the Supreme Court Justice most likely to vote in favor of expansive interpretations of individual rights. He's a libertarian, which means he almost always sides with the individual against the government. This has led him to vote in ways that liberals love and conservatives hate -- such as his vote to affirm Roe v. Wade -- and vice-versa -- such as his vote against government regulation of corporate speech. But it bodes well for the liberals in the same-sex marriage case.

Of course, no one can really predict what the Supreme Court will do. The same-sex marriage case will take years to reach the high court and, in the meantime, there may be turnover among the Justices. But so long as the question of marriage equality turns on Justice Kennedy's vote, Olson and Boies -- and those in the gay and lesbian community who are depending on them to win this case -- are in good hands.

atomiczombie · 08-04-2010, 07:15 PM

Quote:

Originally Posted by Corkey

Just found out you can vote often.......clickety click........Againnnnnn!

Voting...voting...voting.....

08-04-2010, 05:49 PM	#1
Rook Senior Member How Do You Identify?: A.G - Stone Butch - GenderFuck Preferred Pronoun?: Hym, Hyz...or, just b respectable, it's not that hard.. Join Date: Nov 2009 Location: Columbus Posts: 2,280 My Photo Gallery Thanks: 2,227 Thanked 3,182 Times in 1,287 Posts Rep Power: 21474854	I kind of like a BumperSticker I saw on the way home today "When Religion Rules the world, we'll call it the Dark Ages" __________________

08-04-2010, 05:55 PM	#2
MsTinkerbelly Timed Out - TOS Drama How Do You Identify?: ... Preferred Pronoun?: ... Join Date: Nov 2009 Location: ... Posts: 6,573 My Photo Gallery Thanks: 30,737 Thanked 22,908 Times in 5,019 Posts Rep Power: 0	A bit long....from the prop 8 blog Analyzing the Prop 8 WIN: A Few Large Points (I want to introduce my husband, Brian Devine. He’s an attorney that practices civil litigation attorney in San Francisco. We were married back in September 2008, when marriage was legal. We are both hopeful that we’ll get to attend many more weddings. – Brian Leubitz) By Brian Devine Judge Vaughn Walker issued a decision today overturning Proposition 8, finding that it violates both the Due Process Clause and the Equal Protection rights in the United States Constitution. Here’s a full copy of the 138-page decision. Most of the decision (the first 109 pages) is the “factual findings.” This is crucial, and here’s why. On appeal, Judge Walker’s conclusions of law are basically irrelevant. Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference. On the other hand, only a trial court can make factual findings. A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony. Judge Walker knows this. He knows that his primary role in this case is to weigh the credibility of the evidence that was presented at trial and apply the facts that were proven to the law. But the law–unlike the facts–ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court. In a big victory for marriage equality, Judge Walker found that the “strict scrutiny” test applies to the Due Process analysis. As its name implies, this is the most stringent of the tests that can be used to determine if a law satisfies the Due Process Clause. To satisfy “strict scrutiny,” the State must show that the law is “narrowly tailored to a compelling state interest.” On the other hand, the most relaxed standard–and the one that the anti-equality crowd argued should apply–is “rational basis review.” Under “rational basis review,” the Court will uphold a discriminatory law if the State has any rational reason for having the law. Judge Walker found that the “strict scrutiny” test applies instead of the “rational basis” test because marriage is a fundamental right. When the State takes away a fundamental right, it must have a compelling reason to do so. But going even further, Judge Walker found that even if the Prop 8 proponents were right and the “rational basis” test should apply, Prop 8 still does not pass muster. Finding that Prop 8 does not even pass the “rational basis” test, Judge Walker easily found that it could not pass the compelling interest requirement of strict scrutiny. Turning to the Equal Protection claim, Judge Walker’s analysis is essentially the same as for Due Process. First, he found it unnecessary for the Court to determine which of the three tests (rational basis, intermediate review, or strict scrutiny) should be used to conduct the Equal Proection analysis because Prop 8 cannot satisfy rational basis review, the most relaxed of these standards. Although Judge Walker finds that the evidence shows that “strict scrutiny” probably applies, he found that he did not need to reach that decision. Second, Judge Walker goes on to show in detail why each of the arguments advanced by the Intervenors fails to provide a rational basis for Proposition 8: •Intervenors argue that maintaining the traditional notions of marriage being between a man and a woman is a rational reason for Prop 8. Judge Walker responds by citing a 1970 U.S. Supreme Court case and says: “Tradition alone, however, cannot form a rational basis for a law.” He went on to say: Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life. •Intervenors also argued that because same-sex marriage is such a sweeping social change, California has a rational basis to implement this change incrementally. In other words, it should be allowed to first offer domestic partnerships before marriage. Judge Walker rejected this argument, finding that “The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to ntegrate same-sex couples into marriage. •Losing touch with reality, Intervenors’ next absurd argument is that the state has a rational basis to reserve marriage for opposite-sex couples because they’re better parents and the state should promote procreation within an opposite-sex marriage. Judge Walker easily dismisses this drivel by finding that the evidence proves: “(1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents. •Going further afield into crazyland, Intervenors next argue that the state has a rational basis in protecting bigots rights to take away rights from people they don’t like. Holding in his laughter, Walker responds: “Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” Can we get a Hallelujah! •Intervenors next argue that there’s a rational basis in calling different things by different names. They argue that it would be an administrative burden to have the same name for both opposite and same-sex unions. And imagine the chaos that would ensue if someone said that they were married and you later discovered they were a GAY! Judge Walker responds: “Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples.” After rejecting each of the Intervenor’s arguments as to why a rational basis exists for Prop 8, Judge Walker went on to find that in the absence of a rational basis, it is safe to assume that Prop 8 exists because some people just don’t like gays and lesbians: In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief hat a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is ot a proper basis on which to legislate. One quote from the decision that really sums up the feelings of many who believe in equality is: That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” (Quoting a 1943 U.S. Supreme Court case) The long and well-reasoned decision concludes with this short and sweet determination that the couples who challenged Proposition 8 are correct: REMEDIES Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings. Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58. IT IS SO ORDERED.” The elephant in the room is now the question of a stay. Yesterday, in anticipation of losing, the anti-equality Intervenors filed a motion asking the Court to stay its decision pending appeal. In other words, they argue that since an appeal is inevitable, the Judge should not enforce his ruling until after the inevitable appeal is exhausted. Judge Walker has not yet ruled on that motion. Even if Judge Walker denies the stay, the Intervenors will ask the Ninth Circuit Court of Appeal to issue an immediate stay of the decision. In a case like this, a stay is very likely. It remains to be seen whether Judge Walker will grant the stay or if that issue will be decided by the Ninth Circuit. UPDATE CNN is reporting that Judge Walker issued a stay. But there is no Stay Order in the Court’s docket as of this writing, only the motion by the Intervenors. I suspect CNN may have gotten ahead of itself and is publishing unconfirmed rumors. That being said, I think a stay is likely at some point (probably by the Ninth Circuit.) UPDATE The Court just entered an Order shortening time for Intervenors’ motion to stay to be heard. Plaintiffs’ must file their opposition to the Intervenor’s motion to stay Friday, August 6th. The Court will decide the motion on the papers without a hearing. I suspect an order will issue very shortly after the opposition is filed, probably by Monday or Tuesday. In the interim (i.e. in the next few days until the Court rules on the Motion to Stay), the entry of the Judgment is temporarily stayed Bolded is the part I found mst interesting....

08-04-2010, 06:33 PM	#5
Corkey Infamous Member How Do You Identify?: Human Preferred Pronoun?: He Relationship Status: Very Married Join Date: Dec 2009 Location: Where I want to be Posts: 8,155 My Photo Gallery Thanks: 47,491 Thanked 29,270 Times in 6,637 Posts Rep Power: 21474859	http://www.foxnews.com/opinion/2010/...tion-decision/ Go vote and show Faux nuts that we support the decision. __________________ "Many proposals have been made to us to adopt your laws, your religion, your manners and your customs. We would be better pleased with beholding the good effects of these doctrines in your own practices, than with hearing you talk about them". ~Old Tassel, Chief of the Tsalagi (Cherokee)

08-04-2010, 06:55 PM	#7
Corkey Infamous Member How Do You Identify?: Human Preferred Pronoun?: He Relationship Status: Very Married Join Date: Dec 2009 Location: Where I want to be Posts: 8,155 My Photo Gallery Thanks: 47,491 Thanked 29,270 Times in 6,637 Posts Rep Power: 21474859	Just found out you can vote often.......clickety click........Againnnnnn! __________________ "Many proposals have been made to us to adopt your laws, your religion, your manners and your customs. We would be better pleased with beholding the good effects of these doctrines in your own practices, than with hearing you talk about them". ~Old Tassel, Chief of the Tsalagi (Cherokee)

08-04-2010, 06:25 PM	#4
iamkeri1 Member How Do You Identify?: femme woman Preferred Pronoun?: she Relationship Status: solo Join Date: Nov 2009 Location: Central Florida Posts: 905 My Photo Gallery Thanks: 302 Thanked 2,152 Times in 659 Posts Rep Power: 16642920	I am so happy for all you lovely Californians!!!!!!! I want to be happy for all of us in the USA. May this decision soon be supported at the supreme court (US) level so that we all are free. I will be there with you in spirit waving my freak flag high. Smooches, Keri :fireworks :

08-04-2010, 06:54 PM	#6
Soon Infamous Member How Do You Identify?: femme Relationship Status: attached Join Date: Dec 2009 Location: . Posts: 6,896 My Photo Gallery Thanks: 29,046 Thanked 13,094 Times in 3,386 Posts Rep Power: 21474858

08-04-2010, 07:10 PM	#8
Soon Infamous Member How Do You Identify?: femme Relationship Status: attached Join Date: Dec 2009 Location: . Posts: 6,896 My Photo Gallery Thanks: 29,046 Thanked 13,094 Times in 3,386 Posts Rep Power: 21474858	How Will the Supreme Court Rule on Same-Sex Marriage? Adam Winkler Professor at UCLA School of Law Wednesday's landmark decision by a federal court that California's ban on same-sex marriage violates the U.S. Constitution begins to pave the way for an eventual Supreme Court decision on marriage equality. How will the Supreme Court rule? When the California case was first filed by the all-star legal team of Ted Olson -- who argued Bush v. Gore for George W. Bush and then became his Solicitor General -- and David Boies -- who, ironically, represented Al Gore in the disputed presidential contest -- the leading gay rights organizations, joined by the ACLU, came out against the lawsuit. They shared Olson and Boies's goal of securing marriage equality, of course, but they feared what the conservative Roberts Court might do. A strong Supreme Court decision against gay marriage would create a precedent that would take decades to undo. With our society moving generally in the direction of more tolerance for gays and lesbians, activists wanted to wait a few more years before bringing a case to the high court. But gay rights activists may have been too pessimistic about the current Supreme Court. It's true that the Roberts Court is conservative and that several Justices are unlikely to be open-minded about same-sex marriage, including the four most right-leaning Justices: Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito. On the other side of the bench, there are four Justices likely to be favorable to Olson and Boies's argument that the denial of marriage rights to same-sex couples violates the Constitution: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (assuming she is confirmed). As usual in the Supreme Court these days, the swing vote belongs to Anthony Kennedy. And there are several reasons to believe that Kennedy, though conservative on many issues, will vote with the liberals on this one. The Supreme Court has issued two major decisions dealing with gay rights over the past 15 years. Both decisions came out strongly in favor of gay rights -- and both were written by Justice Kennedy. In one of those decisions, Lawrence v. Texas, which held that bans on consensual sexual activity among same-sex partners were unconstitutional, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and other "family relationships." "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes," Kennedy wrote, "just as heterosexual persons do." These words suggest Justice Kennedy believes that gays and lesbians should have the same rights and privileges as heterosexuals. Of course, no right that heterosexuals enjoy is denied more often to gays and lesbians than marriage. Justice Kennedy is also known to be the Supreme Court Justice most likely to vote in favor of expansive interpretations of individual rights. He's a libertarian, which means he almost always sides with the individual against the government. This has led him to vote in ways that liberals love and conservatives hate -- such as his vote to affirm Roe v. Wade -- and vice-versa -- such as his vote against government regulation of corporate speech. But it bodes well for the liberals in the same-sex marriage case. Of course, no one can really predict what the Supreme Court will do. The same-sex marriage case will take years to reach the high court and, in the meantime, there may be turnover among the Justices. But so long as the question of marriage equality turns on Justice Kennedy's vote, Olson and Boies -- and those in the gay and lesbian community who are depending on them to win this case -- are in good hands.