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To: behzinlea
"I think you’re flat out wrong. I don’t believe Kennedy will compound the astounding stupidity of Roe v. Wade with a decision of the same endlessly contentious effect."

Are you saying that just because you believe Kennedy will want to avoid the "endless contentious effect", or do you base you prediction in some element of law - that is to say how Kennedy sees the law? I don't necessarily care how you think Kennedy should rule, but why he'll rule the way you predict.

It just seems to me like you're projecting. I wouldn't. Kennedy's opinion in Lawrence v. Texas (worth reading, as is Scalia's dissent, where he specifically worries about the majority opinion moving us closer to homosexual marriage) is pretty telling with respect to how he views rational basis scrutiny in equal protection and due process cases. Vaughn laid out a detailed case under rational basis scrutiny (in fact he opines it - Prop 8 - doesn't even survive rational basis review), which from my study of Kennedy, will likely be enticing to him.

O'Connor wrote a separate concurring opinion in Lawrence specifically because she didn't like where the majority opinion might lead with respect to marriage - and she says so in her opinion.

Remember, this isn't about how you think or how I think, but how Kennedy thinks - and it's pretty clear that Kennedy gives great deference to rational basis scrutiny in equal protection cases.

110 posted on 08/27/2010 11:11:19 PM PDT by OldDeckHand
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To: OldDeckHand
After reading Lawrence v. Texas and Romer v. Evans along with Gonzalez v. Carhart, I'm actually not certain how Kennedy would view gay marriage.

He may view public morality differently than private morality. This would actually square with how Blackstone explained the dichotomy in Book IV Chapter 4.

I'm no mind reader, of course, and I am not predicting one way or another how Kennedy would view gay marriage as a matter of law. However, I don't think it's certain that Kennedy will come down in favor of the proposition that the 14th Amendment requires gay marriage. He could certainly come up with an intellectually and legally consistent way to distinguish a gay marriage case from Romer and Lawrence, if he is so inclined.
111 posted on 08/28/2010 12:20:28 AM PDT by The Pack Knight (Laugh, and the world laughs with you. Weep, and the world laughs at you.)
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