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University of the Pacific, McGeorge School of Law - Summer 2013

18 summer 20 1 3 E d a s m u s A Decisive Role for Justice Kennedy Many court watchers say the figure at the heart of the brewing drama is Justice Anthony Kennedy. He was the author of the last two gay rights opinions and promises to play a pivotal role in this litigation. Kennedy taught constitutional law as a professor at Pacific McGeorge from 1965 to 1988, when he was appointed to the high court by President Ronald Reagan. Kennedy remains Pacific McGeorge’s longest-serving active faculty member. The decisions in these two cases will not only affect a central right for millions of Americans, they offer a real-time case study on how the court can fumble an issue occasionally, realize it has missed the mark and then reframe its thinking. “These cases are a terrific example of how the law should advance,” says Professor John Sims, who teaches constitutional law. The matchup has given constitutional law professors and their students plenty to discuss. In some classes, students have acted out the arguments for classmates. More than 150 students and others attended a forum in February to discuss the cases. Among the speakers were Professor Lawrence Levine, who teaches sexual orientation law. Levine has studied Kennedy’s decisions in other gay rights cases and analyzed them in a recent law review article. While political momentum in the country is building toward recognizing gay marriage, especially as the number of states allowing it grows (Maine, Maryland and Washington voters all approved same-sex marriage at the ballot in 2012), it is by no means certain the justices will grant broad rights in this area, Pacific McGeorge scholars say. Prop. 8 Revisited “I remain surprised they took the California case,” says Professor Leslie Gielow Jacobs, director of the Capital Center for Public Law & Policy. “The California case is pretty specific to our state, while the DOMA case has national ramifications because it is a federal statute,” she says. “It’s hard to avoid DOMA, but they didn’t have to take the California case.” By a 2-1 vote in 2012, the Ninth U.S. Circuit Court of Appeals struck down Prop. 8 as Anthony Kennedy, associate justice of the U.S. Supreme Court and Pacific McGeorge professor


University of the Pacific, McGeorge School of Law - Summer 2013
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