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When oral arguments on DOMA and Proposition 8 begin in March, it will likely be one of the most high profile Supreme Court cases in recent history. With about 150 first-come, first-serve public seats in the courtroom, the editors of SCOTUSblog predict some of the longest lines ever, forming as many as three days in advance.
As many have pointed out, the fate of both cases will likely lie in the hands of Justice Anthony Kennedy. Often regarded as one of the court’s five conservative justices, Kennedy is a social libertarian who has broken with the social conservatives on the court, like Justice Antonin Scalia, to support individual freedoms.
Most notably, Kennedy’s 2003 majority opinion striking down a Texas anti-sodomy law in favor of two gay plaintiffs gives hints as to how the swing justice might rule in a broader case regarding the right to marry.
”The petitioners are entitled to respect for their private lives,” Kennedy wrote, fueling many of the legal battles for LGBT equality that have persisted in the years since. ”The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
Scalia, writing the dissenting opinion, accused the court of signing onto the ”so-called homosexual agenda” directed at ”eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Scalia added in part, ”If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ … what justification could there possibly be for denying the benefits of marriage to homosexual couples?”
Come this spring, the debate begun by Kennedy’s and Scalia’s countering opinions a decade ago, which continues to play out in state legislatures across the country, may finally get its conclusive day in court.