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Decision Time (Maybe)

Publication Date: 
December 01, 2012
The Economist

Professor Jane Schacter is mentioned The Economist in regards to what role Justice Anthony Kennedy may play in the same-sex marriage debate. 

The battle for what its backers call "marriage equality" has been waged on three fronts: in legislatures, in courtrooms and at the ballot-box. For much of this year it is the last of these forums that has seen the most passionate fighting. On November 6th gay-marriage advocates unexpectedly emerged victorious in all four states in which their cause was on the ballot. Voters in Maine, Maryland and Washington approved gay-marriage laws, and in Minnesota they rejected a proposed ban. The results ended a long electoral losing streak for the gay-marriage cause.

But this week attention turned to the nine justices of the Supreme Court, who on November 30th may decide whether to consider seven same-sex marriage petitions that have been placed before them. For each case, four justices must support its consideration if the court is to take it up. If it does agree to hear one or more of them, rulings should follow by June 2013.


The crucial voice on the court, as so often, will be that of Anthony Kennedy. Although conservative by instinct, Justice Kennedy is sensitive to public opinion, which is rapidly loosening up. He also provided, via a 1996 ruling, the legal foundation for the appeals court's decision to strike down Prop 8. If, says Jane Schacter at Stanford Law School, he believes that a future court will guarantee same-sex marriage rights across the country, the prospect of issuing a narrower decision upholding the Prop 8 ban may look appealing to a 76-year-old justice with an eye on his legacy.