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Dahlia Lithwick: Anthony Kennedy “may not even know yet himself” how he will rule on marriage

A Constitution based not on the text or intent of the original document, but on Anthony Kennedy’s level of approval or disgust for a certain act.

federal judge recently decided that states have no right to distinguish between marriages of heterosexual couples and marriages of homosexual couples.

Paul Mirengoff at Powerline writes,

The notion that the Fourteenth Amendment to the U.S. Constitution bars the government from adhering to the traditional understanding of what is and is not marriage strikes me as ludicrous. . . . .If an argument that adherence to the traditional understanding of marriage is unconstitutional can be cobbled together from existing Supreme Court jurisprudence, that tells me this jurisprudence is hopelessly misguided, not that there is a constitutional right to gay marriage.

If the US Supreme Court hears a case on a US state’s right to determine marriage law, and if it’s done in the next 5-10 years, it will likely be a case decided by a 5-4 vote.  But will it be a decision in favor of the rule of law, or will the majority favor raw judicial activism, based on no rule of law but rather a “living Constitution?”

Right now, the answer to that question depends solely on Anthony Kennedy.  And Anthony Kennedy is all over the map — reckless — in interpreting the US Constitution.

Dahlia Lithwick is a supporter of the decision to mandate gay marriage everywhere through the federal courts.

In an April 27, 2007 article, Lithwick wrote, “Kennedy is what Justice O’Connor used to be — the swing vote… But where O’Connor could be unpredictable, Kennedy is all but inexplicable.”

Justice Kennedy supports Roe v. Wade, which mandates abortion-on-demand through the second trimester (an arbitrary term unrelated to the unborn child’s health and viability outside the womb), but he supports a state’s right to ban partial-birth abortion.

Kennedy opposes the right to private property when a state wants to forcibly take a home in order to then give the land to another private person, in the name of “economic development.”   Kennedy supports a constitutional right to engage in homosexual activity within a private residence.  Kennedy supports the right of private groups like the Boy Scouts to ban gay leaders.

Regarding the 5-4 Supreme Court decision in 2007 that upholds a state’s right to ban partial-birth abortion — this reversed the 5-4 Supreme Court decision in 2000 on virtually the same issue (in between those times, judicial activist Sandra Day O’Connor left the court, and was replaced by originalist Sam Alito) — Lithwick concluded this on April 18, 2007, “that Anthony Kennedy finds partial-birth abortion really disgusting. We saw that in his dissent in Stenberg. That’s what animates and drives his decision.”

Friday, Lithwick asks at Slate, “What Will Anthony Kennedy Do on Gay Marriage?”

She concludes the article with this sentence:  “Kennedy may not even know yet himself.”

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Connect with Benjamin Hodge at FacebookTwitterLinkedInThe Kansas Progress, and LibertyLinked. Hodge is President of the State and Local Reform Group of Kansas.  He served as one of seven at-large trustees at Johnson County Community College from 2005-’09, a member of the Kansas House from 2007-’08, a delegate to the Kansas Republican Party from 2009-’10, and was founder of the Overland Park Republican Party in 2011.  His public policy record is recognized by Americans for Prosperity, the Kansas Association of Broadcasters, the Kansas Press Association, the Kansas Sunshine Coalition for Open Government, the NRAKansans for Life, and the Foundation for Individual Rights in Education (FIRE).

 


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