Supreme Court Justice Anthony Kennedy Might Cast Deciding Vote Striking Down Proposition 8

Well, actually, Kennedy's not all the conservative these days, so it won't be a surprise.

He's into the "evolving standards of decency" doctrine that's been used is left-wing decisions on the death penalty; and more importantly, Kennedy wrote the majority opinion in Lawrence v. Texas, which struck down sodomy laws in 2003. I'd have to research it, but the Court often hesitates to overturn state-level initiatives, arguing that the judgment of the Court can't be assumed superior to the voters in those states where a case originates.

That said, here's David Savage, at Los Angeles Times, "Gay marriage fight may hinge on Supreme Court's Anthony Kennedy":

The Supreme Court has nine justices, but if the constitutional fight over same-sex marriage reaches them this year, the decision will probably come down to just one: a California Republican and Reagan-era conservative who has nonetheless written the court's two leading gay rights opinions.

JusticeAnthony M. Kennedy, 75, often holds the court's deciding vote on the major issues that divide its liberals and conservatives. More often than not, that vote has swung the court to the right. But on gay rights, Kennedy has been anything but a "culture wars" conservative.

One of his opinions lauded the intimacy between same-sex couples and demanded "respect for their private lives," provoking Justice Antonin Scalia to accuse him of having "signed on to the so-called homosexual agenda."

"He is a California establishment Republican with moderately libertarian instincts," Stanford University law professor Pamela Karlan said of Kennedy. "He travels in circles where he has met and likes lots of gay people."

Based on Kennedy's past opinions, Karlan is confident that if the Supreme Court takes up the issue of California's same-sex marriage ban, "it meansProp. 8is going down to defeat," she said. "There is no way he will take it to reinstate" the ban.

Not all court observers share her prediction, but the uncertainty about how Kennedy might vote may, by itself, be enough to deter the high court from hearing an appeal of the decision by the U.S. 9th Circuit Court of Appeals. Four justices must vote for the court to consider a case, but a majority is needed to issue a ruling.

When an appeal reaches the high court, the four most conservative justices will face a tough choice: Vote to have the court hear the case and run the risk that Kennedy would side with the more liberal justices to go beyond the 9th Circuit decision and establish a nationwide right to same-sex marriage. Or turn the case aside, leaving same-sex marriage intact in California but setting no national precedent.

More at the link.