Joel Mathis

That's the central question of my Scripps Howard column with Ben Boychuk this week. My take: Whether the Supreme Court strikes down gay-marriage bans may depend entirely on the attitudes and disposition of Justice Anthony Kennedy, who tends to be the swing vote on controversial issues. Reading his 2003 opinion in Lawrence v. Texas -- the ruling that struck down laws making homosexual sex a crime -- it's difficult to see how state bans on gay marriage will survive. It is true that Kennedy, in his 2003 ruling, was careful to state that decriminalizing such sexual practices did not require formal government recognition of gay relationships. But the logic of that ruling is compelling in the context of gay marriage. The logic was this: To use the law to set apart homosexual conduct "demeans the lives of homosexual persons," and thus is at odds with the guarantees of liberty provided by the U.S. Constitution. Kennedy was right then, and he would be right now to say

This excerpt from Judge Vaughn Walker's ruling strikes a proper balance, I think: An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious recknong that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives. Emphasis added.