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The U.S. Supreme Court is hearing two huge same-sex marriage cases this month, and a lot of gay rights activists are counting on Justice Anthony Kennedy’s vote.While Kennedy is famously unpredictable, some court watchers are fairly confident he’ll vote in favour of gay marriage because he wrote two landmark opinions on gay rights.
But neither of those cases dealt with marriage, and Kennedy made some remarks last week that have some members of the gay community on edge.
Kennedy told reporters in Sacramento, Calif. he was worried the Supreme Court was taking on too many hot-button political issues like immigration, health care, and gay marriage.
“I think it’s a serious problem,” Kennedy said, adding that a democracy shouldn’t rely on nine unelected people with a “narrow legal background” to make its major decisions.
Stephen Herman, a gay rights activist in San Francisco, told Business Insider those statements have had some in the gay rights community worried about how Kennedy will vote.
“I think people were confused with what he was trying to signal with those statements,” Herman said.
The comments came just a few weeks before the court will hear cases involving California’s gay marriage ban Proposition 8 and DOMA, which says the federal government doesn’t recognise same-sex marriage.
Ian Millhiser, a lawyer and editor at ThinkProgress, wrote that Kennedy’s proclamation was “concerning” since he’s probably in the middle of reviewing gay marriage briefs.
“At worst, it is a warning that he’s suddenly decided to restrain himself now that he has a rare opportunity to do good in the world in the marriage equality cases,” he wrote.
If Kennedy does decide to “restrain himself” with gay marriage, he may favour a narrow ruling in the Prop 8 case. Such a ruling would say gay marriage is legal in California but not weigh in on same-sex marriage in the rest of the United States.
That ruling wouldn’t be devastating for gay rights, but it wouldn’t be a total victory either.
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