The justices of the left, along with Justice Anthony Kennedy, who wrote the egregious opinion in Lawrence v. Texas (2003) in which he stated that those committing homosexual acts are Constitutionally “entitled to respect for their private lives” will determine that yes, the Constitution mandates not merely that the state respect private lives, but that the state endorse those private lives (so long as, presumably, polygamy and incest are off the table – for now).
Supreme Court oral arguments are useless, which is why Justice Clarence Thomas never bothers to ask questions; the justices have already made up their minds based on the submitted briefs. Nonetheless, court-watchers pay attention to oral arguments looking for indicators of how the justices will rule. If those oral arguments are any indicator, same-sex marriage will not merely be handed down from on high when this case is decided, religious institutions can prepare to have their tax-exempt status yanked (as I predicted, and as Media Matters scoffed at me for predicting, more than two years ago).
Justice Anthony Kennedy, who represents the likely swing vote in the same-sex marriage case, made his position crystal clear with his questions to Solicitor General Donald Verrilli. “Haven’t we learned a tremendous amount since – well, since Lawrence, just in the last 10 years?” he asked. That led Verrilli to praise Kennedy’s decision in Lawrence, stating, “I think what Lawrence did was provide an assurance that gay and lesbian couples could live openly in society as free people and start families and raise families and participate fully in their communities without fear.”
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