Notes From Babel

Why Kennedy might not take the bait in Perry v. Schwarzenegger

with 2 comments

The Daily Caller ran my piece today predicting how the Supreme Court might rule if and when Perry v. Schwarzenegger and the Prop 8 issue winds up there.  It’s a shortened version of a lengthier piece that had substantially more legal analysis, which I’ll post here later this week.


Written by Tim Kowal

September 14, 2010 at 8:49 pm

2 Responses

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  1. Mr. Kowal,

    I agree with you that Kennedy may not rule in favor of same-sex marriage. But I do not agree with your interpretation of Kennedy’s opinion. You appear to have read Scalia’s opinion without reading Kennedy’s. Scalia badly misinterprets Kennedy’s argument when he claims it is primarily about morality.

    And of course no where does Kennedy ever argue that “moral values have no place in law.” To pass on such a statement, attributing it to Kennedy, even indirectly as you have done, is to bear false witness about Justice Kennedy.

    James Hanley

    September 17, 2010 at 9:49 am

    • I think I said the principle that moral values have no place in the law was at the heart of the Lawrence holding, though certainly it’s true that is not what either Lawrence or Romer actually went so far as to hold. Lawrence ostensibly limited its holding to criminal laws, and Romer was ostensibly based on the “animus” underlying the Colorado amendment.

      Tim Kowal

      September 17, 2010 at 9:57 am

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