Gay Marriage, Public Opinion, and the U. S. Supreme Court
Michael Klarman wrote this interesting opinion piece for the Los Angeles Times:
Courts are almost never at the vanguard of social change. In general, they have required sweeping cultural shifts such as school desegregation only when it was clear that a substantial percentage of Americans supported them. So what does this portend for same-sex marriage litigation, which is likely to end up before the Supreme Court eventually, especially in light of recent federal court rulings in Boston and San Francisco in favor of same-sex marriage?
When the gay marriage issue gets to the Supreme Court, the decision is likely to turn, as do nearly all important constitutional rulings these days, on the views of Justice Anthony M. Kennedy — probably the most powerful justice in the court’s history. Kennedy sits squarely in the middle of today’s ideologically polarized court. From his written opinions, we know that Kennedy is more supportive of the constitutional rights of gay Americans than are his more conservative colleagues. We also know that he is not oblivious to the judgment of history.
Although it would be mildly out of character for Kennedy to interpret the Constitution to impose the views of a mere handful of states on the entire nation, by the time a gay marriage case reaches the court, several additional states may be permitting same-sex couples to marry. Moreover, Kennedy can read handwriting on the wall as well as anyone else. What better way is there to win the plaudits of future generations of Americans than to author the Supreme Court opinion eradicating one of the last formal barriers to equal citizenship for gays and lesbians?
Michael Klarman is a professor at Harvard Law School and the author of “From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality,” which won the 2005 Bancroft Prize.
To read the entire piece, click here