What Would Kennedy Do?

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A day after the U.S. Supreme Court issued a 5-4 decision involving anti-gay discrimination and the First Amendment, the legal team challenging Prop. 8 sent Judge Vaugh Walker a letter. Signed by attorney Theodore Boutrous, Jr, the letter is intended to "bring to the Court's attention" the decision and its meaning for this lawsuit. In Christian Legal Society (CLS) vs. Martinez, the student organization sued UC Hastings for denying the group official recognition and the benefits that come with that because they explicitly did not allow openly gay or lesbian students to join. To attain official status, UC Hastings requires student organizations to accept "all comers" and not discriminate. CLS sued, saying Hastings violated its First Amendment rights. The 5-4 majority, which included Justice Anthony Kennedy, rejected that claim. In its letter to Judge Walker, the plaintiffs' legal team wrote that the ruling "confirms that a majority of the Court now adheres to Justice O'Connor's view" ... that "that there is no distinction between gay and lesbian individuals and their conduct." Is there any predictive value in this decision? Plaintiffs hope so. But Loyola Law School Associate Professor of Law Douglas NeJaime thinks it's just "wishful thinking." In response to an email from me he writes, "Yes, Kennedy has reached another result that’s respectful of gay identity, but I don’t think it actually tells us much about his views on marriage. The doctrine involved was completely different (First Amendment) than in the Prop 8 case and the posture was much different (a public/state university seeking to enforce its existing nondiscrimination policy, rather than the situation in Perry in which the plaintiffs are seeking to invalidate an existing state (constitutional) law). So basically I think it’s good that Justice Kennedy has continued to understand the gravity of sexual orientation nondiscrimination claims, but I don’t think it gives us much indication of how he would deal with the issues in Perry."

UPDATE: Attorneys defending Prop. 8 also sent a letter to Judge Walker refuting the plaintiffs' contention. In his submission to the court, Charles Cooper wrote, "Contrary to plaintiffs' submission, Christian Legal Society did not address, let alone purport to resolve, questions regarding the definition or nature of sexual orientation, whether homosexuality is immutable, or whether gays and lesbians constitute a suspect class for purposes of the Equal Protection Clause."

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