The Supreme Court’s “swing voter” Anthony Kennedy has written a scathing dissent in response to the majority’s decision not to rule on California’s voter-approved gay marriage ban Proposition 8.
The court’s majority found the anti-gay marriage activists who helped pass Prop 8 didn’t have standing to fight the law in court after California refused to do so. Essentially, the court ruled the Prop 8 proponents didn’t have enough of a stake in gay marriage to fight against it in court.
Kennedy’s dissent — which was joined by Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor — argues that California’s anti-gay marriage activists very much had a stake in the Prop 8 dispute.
“Their commitment is substantial,” Kennedy noted, adding that Prop 8 proponents gathered signatures for the gay marriage ban and drafted arguments for the official ballot pamphlet.
“Having gone to great lengths to convince voters to enact an initiative, they have a stake in the outcome and the necessary commitment to provide zealous advocacy,” Kennedy writes.
Voters who help get a ballot initiatve passed should be able to defend it in court — even if a state refuses to do so, Kennedy writes. By his logic, voters who get gay marriage bans passed should be able to fight to keep those bans in place. The majority’s ruling takes away that power, according to Kennedy.
“The court’s opinion disrespects and disparages … the political process in California,” Kennedy writes. “The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.”
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