- Prop 8 and DOMA be struck down on sex discrimination grounds? 17, By Combs Last week, University of School of Law professor West–who formerly clerked with Supreme Court Justice Stevens–wrote a piece in Slate sweet wives want sex with a tantalizing headline: ‘What Is Kennedy Thinking?’ As court watchers and LGBT advocates flock to SCOTUSblog (or even the real SCOTUS itself) on Monday and Thursday mornings this, waiting to find out what the putative swing justice thinks of marriage equality, West’s theory is that we might all be looking at Kennedy’s possible reasoning the wrong way–in fact, she argues, he’s already told us what we might expect. Here’s the central nugget from West’s Slate article: In March, during the oral argument about California’s same-sex marriage ban, Kennedy said that he was “trying to wrestle” with a “difficult question” about the constitutionality of same-sex marriage. The question on his mind was whether prohibitions on same-sex marriage are a form of gender discrimination. The lawyer defending the ban, Cooper, responded that this was a case about sexual orientation, not gender, and the argument quickly moved in a different direction. But we shouldn’t dismiss Kennedy’s question about gender discrimination too hastily. The court’s precedents on gender might offer Kennedy the conservative compromise he is looking for: a way to recognize a constitutional right for same-sex marriage in a limited way. FULL STORY: