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

e d a s m u s 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. paci f i c l aw 19 unconstitutional, on rather narrow grounds. “I think a lot of people aren’t completely sure where the justices are headed on all this. And I think the justices aren’t sure, either,” Jacobs says. She and other scholars note that it takes only four justices to vote to hear a case, but it takes five to form a majority. And there is no telling which justices voted to hear the cases and how they might vote on the larger issues. Levine says it was less of a surprise that the court took the Windsor, or DOMA, case. “Even though every court that has looked at it has ruled it unconstitutional, you are striking down an act of Congress, which some of the court may see as a big deal,” he says. The cases have brought out powerful sentiments on all sides of the issue. “For me, the question is, When is it permissible for the government to classify and treat one group better than another,” says Sims. “From the beginning, I regarded Bowers v. Hardwick a 1986 decision upholding Georgia’s law banning sodomy between consenting homosexual adults as an outrage, one of the worst cases ever. I would put it in the same category as Dred Scott, Plessy v. Ferguson and the Korematsu case.” Bowers was overturned in 2003 in a decision authored by Kennedy, Lawrence v. Texas. Correction at Court The current cases mark a rare event in jurisprudence, Sims and Levine agree. “The Supreme Court has done what it is rarely able to do: see that it made a mistake and go about correcting it,” Sims says. The justices, in effect, said discrimination against gays was permissible and then turned around and “found the rest of the country was going the other way.” The fact that Justice Kennedy was not serving on the Supreme Court when Bowers was decided makes it easier for him to be the justice to lead the correction, Sims notes. “Even though every court that has looked at U.S. v. Windsor has ruled it unconstitutional, you are striking down an act of Congress, which some of the court may see as a big deal.” —Professor Larry Levine Professor Lawrence Levine, a leading expert on sexual orientation law


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