If and when the California same-sex marriage case (or a similar case) reaches the U.S. Supreme Court, the results may well depend on Justice Anthony Kennedy, a Californian appointed to the Court in the 1980s by Republican president (and former California governor) Ronald Reagan. With four likely votes for and four likely votes against same-sex marriage, the Supreme Court decision may well depend on Kennedy’s tiebreaking vote. If so, it will be a useful reminder that some of the divisions that threaten the unity of the Republican Party today—between moderates and conservatives, but also between social, economic, foreign policy, and libertarian conservatives—run right through the Republican majority on the Supreme Court. In fact, these divisions have been evident in the Republican majorities on the Court for more than forty years.
Predicting Justice Kennedy’s vote with any degree of certainty is a risky game. Much will undoubtedly depend on the facts of the case and the litigation strategies used by the opposing sides, as well as the many other political, legal, social, and cultural factors that influence Supreme Court decisions. Kennedy’s majority opinions in Romer (1996) and Lawrence (2003), while supportive of gay rights, can be read to suggest both positive and negative outcomes for proponents of same-sex marriage. But there may be useful clues in a case decided by the Court in 1989, just after Justice Kennedy was appointed.
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