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Gay marriage: How will the Supreme Court rule?

In March, the court will consider challenges to the constitutionality of both the Defense of Marriage Act and California’s Proposition 8.

Antonin Scalia “knew this day would come,” said Michael McGough in the Los Angeles Times. Back in 2003, when the U.S. Supreme Court struck down a Texas law banning homosexual sodomy, the conservative jurist said in a furious dissent that the ruling would cause “a massive disruption of the current social order” equivalent to legalizing bestiality and incest, and predicted that it would open the door to gay marriage. Sure enough, the Supreme Court agreed last week to wade into the most contentious civil-rights issue of our times, and hear two cases involving the constitutionality of gay marriage. Back in his chambers, a grumpy Scalia must be saying, “I told you so.” When the court hears oral arguments in March, said Emily Bazelon in Slate.com, it will mark a pivotal moment in the nation’s history. The court will consider challenges to the constitutionality of both the Defense of Marriage Act (DOMA) of 1996, which prohibits the federal government from recognizing any state’s gay marriages, and to California’s Proposition 8, which banned same-sex marriage there. One possible outcome is a Roe v. Wade–like ruling that instantly makes gay marriage “legal in every single state.” Whatever happens, “this is gonna be big.”

The question is, how big? said Ruth Marcus in The Washington Post. Though they’d deny it, the court’s justices “are exquisitely aware of the public mood,” and don’t like to get out too far ahead of popular opinion. Over the past decade, public support for gay marriage has grown rapidly, as successful ballot initiatives in Washington, Maine, and Maryland recently proved. But 33 states still have laws banning gay marriage, and polls say 47 percent of Americans remain opposed to it. Thus, it’s likely the court will seek to avoid another Roe-like backlash with a narrowly worded ruling that strikes down DOMA and Prop. 8—without deciding whether all gay Americans have a constitutional right to marry.

Everyone knows how Scalia will vote, said Rod Dreher in TheAmericanConservative.com. He just told an audience that “moral objections” to homosexuality are no less justified than moral opposition to murder. But “on this sharply divided court,” the inevitable 5–4 vote will be decided by the swing justice, Anthony Kennedy—and he’s firmly pro-gay. Kennedy has previously written that the 14th Amendment of the Constitution guarantees a person’s “most intimate and personal choices,” and that discriminatory laws cannot be based on “moral disapproval.” Unless he’s changed his mind, “gay marriage will be a constitutional right by this time next year.” Don’t be so sure, said Jeffrey Rosen in TNR.com. Historically, Kennedy has also been a champion of state’s rights. He will join with the four liberals only if they limit their ruling to DOMA and California, and do not nullify anti-gay-marriage laws in the rest of the nation.

That would be for the best, said Jonathan Rauch, also in TNR.com. I’ve been fighting for marriage equality since the mid 1990s, “when the cause seemed crazy.” But with stunning rapidity, Americans have come to see the fundamental fairness of letting gays marry the person they love. Polls are swinging our way, and we just won a public vote in three states, despite “all the arguments and money our opponents can throw at us.” A Supreme Court ruling mandating gay marriage in 50 states would only stir up an angry backlash, and deny us the ultimate victory. Let us win this battle “where it counts: in the hearts and minds of our straight fellow citizens.”

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