Is Now the Time for SCOTUS to Legalize Gay Marriage?


Amidst the rapidly changing tide of public opinion toward gay marriage, the Supreme Court will finally decide whether or not to confront the constitutionality of same-sex marriage this Friday, November 30. A number of cases have recently been appealed to the Supreme Court on same-sex marriage, including challenges to the Defense of Marriage Act (DOMA), which states that federal benefits for marriages only apply to heterosexual unions, and California’s Proposition 8, which defines marriage in California as being between a man and a woman. In all of the cases, lower courts have declared restrictions on same-sex marriage unconstitutional. [1] [4]

According to the Los-Angeles Times, opinion polls now show that a slight majority of Americans support gay marriage, and that support has been increasing an average of 4% per year [3]. In the most recent election, victories for same-sex marriage were seen in all four states where the issue appeared on the ballot, bringing the total to nine states [2]. Yet despite this rapid cultural shift, one still has to wonder whether it might be too soon for the Supreme Court to make a broad decision legalizing same-sex marriage.

Critics point to the Supreme Court’s decision in 1973’s Roe v. Wade to strike down as unconstitutional all state laws restricting abortion, claiming the Court went “too far too fast” in making a broad decision regarding such a contentious issue, especially with the strong rift in public opinion at the time. In the same vein, should the Supreme Court make a broad ruling imposing marriage equality on the entire country, or should it preach judicial restraint for the time being, waiting for a more unified national support of gay marriage? As stated in the recent appeal by defenders of Proposition 8, is it the role of federal judges, who are not directly accountable to the people, to make a decision regarding “the profoundly important question of whether the ancient and vital institution of marriage should be fundamentally redefined”? [3]

Many, including even some gay-rights advocates, believe the Court should wait to impose same-sex marriage on the majority of the country and stand aside for now, seeing as public opinion is shifting only one way – toward marriage equality. Such people believe it is not the role of the Court to undermine public opinion regarding the definition of marriage – let opinion in each individual state determine the issue for now. On the other hand, many believe that gays have a constitutional right to be treated equally regarding marriage, and thus it is the duty of the Supreme Court to protect that right, despite public opinion. As Vanderbilt Law School professor Suzanna Sherry stated, “If there is no rational basis for denying gays the right to marry, the court should step in and protect gays from the tyranny of the majority.” [3]

It will be very interesting to see if the Court decides to grant certiorari to any of the appeals. The conservative wing of the Court, which consists of the minimum four people required to grant certiorari, would surely like to overturn the decisions of the lower courts regarding DOMA and Proposition 8. However, they might not want to risk the prospect of a broad decision legalizing same-sex marriage, especially seeing as swing Justice Anthony Kennedy has authored two of the most influential SCOTUS opinions supporting gay rights – Romer v. Evans and Lawrence v. Texas.

So, be sure to stay tuned this Friday to see if the Supreme Court decides to take any of the cases. Should it do so, a landmark ruling might just happen to be in order this upcoming June.






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