The Borneo Post

Anthony Kennedy, the Supreme Court’s swing vote

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WASHINGTON: As the US Supreme Court prepares to hear arguments Tuesday in the highly anticipate­d ‘ gay wedding cake’ case, all eyes are once again on Justice Anthony Kennedy, the fulcrum upon which the bench has turned for a decade.

The case, which pits Christian conservati­ves against progressiv­es and the LGBT community, concerns a Colorado baker who, due to his religious beliefs, refused to bake a wedding cake for a gay couple.

The court will have to decide between three constituti­onal rights – sexual equality, freedom of religion and freedom of expression.

The stakes are high, and could open the door for conservati­ve businesses to spurn gay couples.

Eighty- one-year- old Kennedy, who was appointed by Republican president Ronald Reagan in 1987 and is the court’s longest serving judge, is widely expected to provide the decisive vote.

Kennedy is to the Supreme Court what swing states are to elections.

Conservati­ve on firearms and election financing, he can be more progressiv­e on issues such as abortion and affirmativ­e action.

On a bench comprising four progressiv­e and four conservati­ve judges, his view often tips the balance. An example of this came in 2015, when, thanks to him, samesex marriage was legalized across the United States.

The judge, of Irish origin, then drafted the landmark ruling – just as he drafted the decision in ‘Lawrence v Texas’ in 2003, which declared a state law forbidding sodomy illegal. But will the elderly judge, a practicing Catholic, vote in favour of the LGBT community in this latest case? It’s a question currently frustratin­g experts.

The Trump administra­tion, around twenty American states, dozens of members of Congress and countless Christian and conservati­ve pressure groups have backed Jack Phillips, the baker.

These supporters have sent the Supreme Court many arguments, which seem to directly address Kennedy.

Steven Schwinn, Professor of Law at the University of Chicago, told AFP he believes the judge will ‘struggle’ with the decision.

“I think he’ll see this case as a clash of interests: the dignity and equality interest of the same- sex couple, on the one hand, and the religious freedom and free-speech interests of the cake-baker, on the other,” he said.

“I imagine that he’ll probably struggle with how to balance these. I think he’s going to be torn,” was the view of Louise Melling, deputy legal director of the American Civil Liberties Union.

“He’s distracted by the deep faith of Jack Phillips. Jack Phillips is a person of faith and runs his bakery consistent with his faith, he has a small family business. We know that Justice Kennedy will care about that, there is no question,” she said.

“On the other hand, Justice Kennedy cares deeply about the LGBT community,” Melling added. — AFP

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Anthony Kennedy

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