Matthew Franck on the 9th Circuit's "Desperate Targeting" of Justice Kennedy


Matthew Franck, Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute, in Public Discourse:

..In short, Judge Reinhardt has cooked a dish intended to appeal especially to Justice Kennedy, the author of Romer. Since that decision, its six-justice majority has probably declined to just five, with the replacement of Sandra Day O’Connor by Samuel Alito. Kennedy’s own vote for same-sex marriage is therefore indispensable to the success of Reinhardt’s perfectly transparent agenda.

It is worth noting that Reinhardt says as little as possible about Lawrence v.Texas in 2003, a 5–4 ruling also authored by Justice Kennedy, which held on due process grounds that a state cannot prohibit homosexual sodomy. That is no doubt because Kennedy had flatly denied in Lawrence that a constitutional right to same-sex marriage was implied by the Court’s holding in that case. “No, Justice Kennedy,” Judge Reinhardt seems to say, “don’t look over there at Lawrence, look over here at Romer!”

Perhaps Judge Reinhardt thinks Justice Kennedy is a slightly addled puppet, who can be made to dance as one wishes if only the right string is pulled. But Justice Kennedy should find all this obvious targeting of himself to be deeply offensive. For Reinhardt’s assimilation of Perry to Romer is ably rebutted by the dissent of Judge N. Randy Smith, who notes that California’s Prop 8 has a much narrower reach than did Colorado’s Amendment 2.