Gasp! NYTimes covers the heart of Kennedy’s argument!

Let’s hear it for The New York Times, a newspaper that can always be trusted to get key information on both sides of hot religious and cultural debates into print.

Wait. Say what?

Actually, in contrast with the CNN Belief Blog editorial that our own Jim Davis parsed this morning, the basic Times news report on the Supreme Court’s Town of Greece, New York v. Galloway, Et Al decision (.pdf) does a pretty good job of allowing readers to hear voices on both sides of this important debate.

The bottom line: This story managed to mention one of the most crucial questions facing the justices, which is, “Is nonsectarian prayer possible?” And after that question comes another church-state puzzle: Who is in charge of determining whether any given believer’s sort-of-free speech is nonsectarian enough to pass muster with state officials?

As always, the crucial swing vote in this 5-4 decision belonged to America’s uncrowned king, Justice Anthony M. Kennedy, a pro-business moral-libertarian country-club Republican who is to some degree an American Catholic.

Readers quickly learn some important facts:

Justice Anthony M. Kennedy, writing for the majority, said that a town in upstate New York had not violated the Constitution by starting its public meetings with a prayer from a “chaplain of the month” who was almost always Christian and who sometimes used distinctly sectarian language. The prayers were ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the occasion. …

Justice Elena Kagan said in dissent that the town’s practices could not be reconciled “with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.” …

She did not propose banning prayer, Justice Kagan said, but only requiring officials to take steps to ensure “that opening prayers are inclusive of different faiths, rather than always identified with a single religion.”

The situation in Greece, N.Y., is pretty familiar. Town officials insist that all kinds of people are welcome to line up to give prayers — atheists included — but, as the story notes, in practice “almost all of the chaplains were Christian.” Some believers have even made references to offensive concepts such as Jesus dying on the cross.

This has, of course, offended some citizens who have lawyers.

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Ghost in that NYTimes Justice Kennedy hagiography

It’s time for a quick dip into my unusually thick GetReligion folder of guilt, that place where I stash stories that I know deserve a bite of criticism, but more pressing matters (think Syria) keep pushing them back in the cyber-queue.

The other day, The New York Times ran what was essentially a work of hagiography in praise of U.S. Supreme Court Justice Anthony M. Kennedy. There is not a single surprising word in this story, not a random thought that would upset the loyal community of Times readers who view it as holy writ and would be quick to challenge any violations of orthodoxy.

Also, I realize that — hello former editor and now columnist Bill Keller — as a tolerant, urban, intelligent source of information, there is no need for the Times team to provide any balancing or challenging information in this work of advocacy journalism.

Nevertheless, I do have a question about an interesting piece of information (yes, a religion ghost) that is missing in this report. We’re talking about basic information, here, not opposing points of view.

Now, note that — right up top — the key to the story is that gay rights leaders have been surprised by the strength of the justice’s convictions on this issue. In fact, they had reasons to believe he would not support their cause. Thus the headline: “Surprising Friend of Gay Rights in a High Place.” Here is the lede and then a crucial chunk of background material:

The San Francisco Gay Men’s Chorus sang “Give ’Em Hope” for a revered and in some ways surprising guest who shared a California stage with them last month: Justice Anthony M. Kennedy.

And later:

The praise now being showered on Justice Kennedy by gay rights advocates — and the deep disappointment of conservatives — would have been hard to imagine when President Ronald Reagan nominated him to the Supreme Court in 1987. Gay rights groups were more than a little wary then. On the federal appeals court in California, where Justice Kennedy had served for 13 years, he heard five cases concerning gay rights. He voted against the gay rights claim every time.

“I have to say that Kennedy seems rather obtuse on important gay issues and must be counted as a likely vote against us on most matters likely to come before the Supreme Court,” Arthur S. Leonard, an authority on gay rights at New York Law School, wrote in The New York Native, a newspaper that focused on gay issues.

The justice’s trajectory since then has been a product of overlapping factors, associates and observers say. His Supreme Court jurisprudence is characterized by an expansive commitment to individual liberty. He believes that American courts should consider international norms, and foreign courts have expanded gay rights. His politics, reflecting his background as a Sacramento lawyer and lobbyist, tend toward fiscal conservatism and moderate social views. And he has long had gay friends.

Yes, Kennedy is a Republican, the story notes, but he is a California Republican. Good point, that. Culture and context are important.

However, there is an interesting “C” word missing in this piece, a word that probably had something to do with the original decision by Reagan & Co. to put Kennedy on the high court.

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On same-sex marriage: What is the chief justice thinking?

People who study the dynamics of this U.S. Supreme Court have, from the get-go, assumed two or three things about Chief Justice John Roberts.

First of all, he is a very cautious man, one who is very worried about the prestige of the court and the perception that it is above politics. This is not a man who wants to decide bitter, divisive, hot-button, explosive issues with 5-4 votes.

Roberts does not want to create judicial earthquakes. This is not a jurist who wants to blaze dangerous trails long before it is clear that the American public is ready to walk them. The last thing he wants is another Roe v. Wade, followed by decades of bitterness and civic strife.

Seen from this perspective, the Obamacare decision appeared to be an exception to the rules. While many conservatives called him a traitor, others noted that Roberts did that cautious thing that he does — he backed a narrow decision that made it harder to accuse the court of playing politics. After all, what is unusual about the federal government creating a new form of taxation that affects the whole population?

With that in mind, folks here inside the DC Beltway are asking a rather obvious question about the stunning news that the Supremes are going to address the nation’s hottest and most divisive issues — same-sex marriage and, perhaps, even whether sexual orientation can considered a condition leading to special, protected status for civil-rights claims, similar to race, gender, age, religion, etc. The court has, in the past, avoided a definitive statement on that issue, even in Romer v. Evans.

So the question many are asking: Why would the ever-cautious Roberts want to take on same-sex marriage at this point in the judicial game? Or look at that question from another point of view: Why would liberals on the high court want to take on this issue at this point, at the START of a second Barack Obama term? They know that their hand will only grow stronger in the next four years.

Thus, in recent weeks, most mainstream press coverage — while seeming to yearn for a clear gay-rights victory — has focused so much attention on the voices of liberal experts who were not sure that the timing was right for, well, a judicial earthquake. With all of that in mind, take a look at this Washington Post report, which begins by stating:

The Supreme Court put itself at the center of the nation’s debate over whether gay couples have the same fundamental right to marry as heterosexuals, agreeing Friday to review state and federal efforts to preserve a traditional definition of husband and wife.

In agreeing to hear cases from California and New York, the court raised the possibility of a groundbreaking constitutional decision on whether the right to marry may be limited because of sexual orientation. At the same time, the justices also will have the ability to issue narrower rulings on a subject that continues to divide the American public.

The cases will probably be heard in historic sessions at the court in late March, with decisions to come when the justices finish their work at the end of June.

As you would expect, a key part of this Post story focuses on the pivotal justice on the court — which would be Anthony M. Kennedy, a Republican who leans conservative on most economic issues and to the left on most cultural issues. Is it time for another landmark opinion that proves Kennedy is not one of THOSE Catholics?

The strategic implication is clear and has been for months: Will Roberts be able to prevent another 5-4 earthquake, with Kennedy providing more sweeping prose like the following in his Planned Parenthood v. Casey decision, the famous meaning-of-the-universe passage which he then referenced in the landmark gay-rights case Lawrence v. Texas:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Thus, the Post notes:

Central to the outcome of the term’s signature cases will be Justice Anthony M. Kennedy, who normally sides with the court’s conservatives but has written some of the court’s most important cases upholding gay rights. For instance, he wrote the Romer decision that the 9th Circuit used as the template for overturning Prop 8.

But some gay rights activists have worried about asking Kennedy and the court to move too far too quickly on what would be a sea change in the way Americans view marriage.

I was not surprised that, in this early Post story on this explosive topic, there was absolutely zero attention given to religious-liberty concerns. Those discussions will come later, when it will be all but impossible for mainstream newsrooms to avoid them — since religious doctrines and traditions were at the heart of the debates about DOMA and Proposition 8.

But here is what did surprise me about this story. Did I miss something or is one very important name — John Roberts — missing from this report? What will we learn about Roberts and his role in the court taking on this hot-button issue at this particular moment in time?

Trust me. People from coast to coast will want to know the answer to that one. Does Roberts have a plan to protect his beloved court?


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