US Supreme Court Justice Kennedy will Decide Gay Marriage Cases, But How? Liz Goodwin - Yahoo!
go to original March 28, 2013

Supreme Court Justices Anthony Kennedy (R) and Stephen Breyer on Capitol Hill on March 14, 2013. (Win McNamee/Getty Images)

Few things were certain after the Supreme Court's first foray into the issue of gay marriage earlier this week—except that conservative-leaning swing vote Justice Anthony Kennedy will control the outcome.

The four liberal and the four conservative justices appeared to split right down the middle on how (and whether) to decide the constitutionality of both Proposition 8 and the Defense of Marriage Act. Kennedy—who in the past authored the court's two most important opinions affirming gay rights—seemed to be on the fence in both cases.

The most likely scenario: Kennedy will form a coalition with the liberals to strike down Proposition 8 and DOMA without substantially addressing the plaintiffs' claims that gays and lesbians should be allowed to marry and have those marriages treated equally to opposite-sex marriages by the law.

The hope for a "nationwide ruling on same-sex marriage was clearly dashed on Tuesday," said Doug NeJaime, a professor at Loyola Law School.

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