The U.S. Supreme Court has agreed to hear a pair of cases that could -- but likely will not -- establish a nationwide, constitutional right to gay marriage. The cases leave the high court plenty of escape hatches from taking a big step the country may not be ready for yet, said William Eskridge, a constitutional law scholar at Yale Law School who contributed the legal reasoning that helped decide one of the cases, a challenge to an anti-gay marriage referendum in California.
Pictured: Supporters of California's Proposition 8 ban on same-sex marriage protest outside the California Supreme Court in San Francisco, Calif., Sept. 6, 2011.The Supreme Court agreed to hear Hollingsworth v. Perry, the California case, as well as U.S. v. Windsor, a challenge to the federal Defense of Marriage Act. Both go to the core of one of the most divisive issues in American politics, the equivalent of interracial marriages in the 1950s. Very few people today would seriously support legal restrictions on a marriage between a white man and a black woman, but it wasn't until the high court's 1967 decision in Loving v. Virginia that such laws were declared unconstitutional nationwide. Eskridge, whose scholarship has focused on how the Supreme Court adapts to mass political movements, thinks the country hasn't yet reached a similar consensus on gay marriage.
"The Supreme Court would not have decided Loving in the 1950s," he told me. "I would be very surprised if the court issues an opinion that spells the doom" of anti-gay marriage laws.
This may seem strange coming from the man who has supplied much of the legal reasoning undergirding the decisions that have supported gay rights, including 2003′s Lawrence v. Texas, invalidating state anti-sodomy statutes. But Eskridge teaches his students -- I was one of them a decade ago -- that the court responds slowly to broad social movements that implicate changes in civil rights. Only after Thurgood Marshall and his colleagues had pursued and won lawsuits challenging "separate but equal" school facilities in courts across the country was the Supreme Court willing to take the momentous step of declaring school segregation to be unconstitutional in Brown vs. Board of Education in 1954. It took many years more for lower courts to enforce its provisions.
We're at a similar point in the evolution of public thinking about gay marriage, Eskridge said. He described a recent luncheon meeting he attended in St. Louis where he asked some members of the audience how Missourians would respond to a Supreme Court ruling subjecting gay-marriage bans to the nearly insurmountable constitutional standard of strict scrutiny. "The guns would come out," one attendee told him.
In Hollingsworth, the court will review a Ninth Circuit decision upholding a lower court's invalidation of California's Proposition 8 making same-sex marriages illegal. The lower court issued a broad ruling declaring the law, passed by statewide referendum, to be unconstitutional. The Ninth Circuit adopted Eskridge's narrower reasoning that the referendum was invalid because it stripped a minority group -- same-sex couples -- of fundamental rights they had already possessed, albeit briefly, after some California cities started issuing marriage licenses.
SOURCE: Daniel Fisher