Justice Kennedy'sthe one to watchon gay marriage

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Washington » Supreme Court Justice Anthony Kennedy eventually will get his hands on California's gay marriage ban.

That's when the landmark case will really get interesting.

Kennedy's the one to watch, even if his name appears nowhere in a trial judge's 138-page opinion issued Wednesday striking down California's Proposition 8 ban on gay marriages. Nonetheless, Kennedy's previous decisions were cited 16 times in U.S. District Judge Vaughn Walker's ruling that Proposition 8 violates the Constitution.

Walker's citations to Kennedy foreshadow the highly anticipated showdown that's to come when the Supreme Court finally considers gay marriage.

"It seems the issue will clearly be close, and on close cases [Kennedy] tends to be in the middle," said Carl Tobias, a University of Richmond law professor.

Kennedy wrote gay-friendly opinions in a 1996 case striking down a Colorado ballot measure and a 2003 case striking down a Texas law that banned gay sodomy.

He says he hasn't tipped his hand on gay marriage, stressing that the 2003 decision "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

Kennedy's opinion "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned," Justice Antonin Scalia wrote in a 2003 dissent.

The Supreme Court could look different by the time the gay marriage case arrives, though. Some intervening steps, not all of them predictable, also may shape the case's outcome.

The court's oldest member now is 77-year-old Justice Ruth Bader Ginsburg, who's battled cancer several times.

Although she hasn't hinted at retiring, her departure during President Barack Obama's term could affect the gay marriage case. For instance: If Democrats lose some Senate seats this November, as appears likely, their weaker grip on the Senate could make Obama more likely to pick a moderate for the Supreme Court rather than an avowed liberal.