Same-sex marriage fight heats up

WASHINGTON (AP):The pro-gay rights rulings of United States (US) Supreme Court Justice Anthony Kennedy have been a key spark in the march towards legalised gay marriage.

To counter the trend, same-sex marriage opponents now are seizing upon other opinions by Kennedy himself.

It was Kennedy who last month defended the right of voters to decide sensitive issues, in a ruling that upheld Michigan's ban on taking race into account in college admissions.

At least five states have invoked Kennedy's opinion in the Michigan case to argue that voters and elected officials, not judges, should choose whether same-sex couples can be married or have their marriages recognised within their borders.

"This case is not about how the debate about same-sex marriage should be resolved. It is about who may resolve it," Tennessee's governor and attorney general said in an appellate brief filed last Thursday, using language lifted almost word for word from Kennedy's Michigan opinion.

The sentence merely substituted "same-sex marriage" for "racial preferences".

Tennessee is asking the Cincinnati-based 6th US Circuit Court of Appeals to undo a preliminary ruling that forced the state to recognise same-sex marriages from other states.

Michigan Attorney General Bill Schuette, who also defended the ban on consideration of race, said in a filing with the same appellate court last Wednesday: "As Justice Kennedy recently explained, 'it is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds'."

NO AUTHORITY IN CONSTITUTION

Schuette added, "There is no authority in the Constitution of the United States or in this court's precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters."

Lawyers in support of state and county officials in Oklahoma, Utah and Virginia have made similar arguments.

But fighting Kennedy with Kennedy may be an uphill battle. The 77-year-old justice has also written the high court's three strongly pro-gay rights decisions in the past 18 years, with powerful language about the dignity of gay and lesbian Americans and the humiliation felt by children who are being brought up by same-sex parents who may face discrimination.

Judges on the 4th US Circuit Court of Appeals in Richmond, Virginia, will weigh the competing writings of Kennedy when they hear arguments on Tuesday over the Virginia prohibition on same-sex marriage.