AP has a story speculating on whether the rapid advance of pro-marriage equality cases in several states over the last few months will influence the result of either the Prop 8 case or the DOMA case that the Supreme Court are considering right now, with a ruling expected in about a month.
Three U.S. states and three countries have approved same-sex unions just in the two months since the Supreme Court heard arguments over gay marriage, raising questions about how the developments might affect the justices’ consideration of the issue.
In particular, close observers on both sides of the gay marriage divide are wondering whether Justice Anthony Kennedy’s view could be decisive since he often has been the swing vote on the high court.
It is always possible that Justice Kennedy is reading the newspapers and is impressed with the progress,” said Michael Klarman, a Harvard University law professor and author of a recent book on the gay marriage fight.
In earlier cases on gay rights and the death penalty, Kennedy has cited the importance of changing practices, both nationally and around the world.
As many court observers and legal scholars have noted, the Supreme Court typically lags a bit behind the public when it comes to advancing civil rights. And there is a clear analog in how the court handled laws against interracial marriage. Federal courts had refused several times to overturn such laws on equal protection grounds, most notably in Pace v Alabama in 1883, while most states had such prohibitions in place. But between 1948 and 1967, 14 states repealed their anti-miscegenation laws. Only 17 states still had such laws in 1967, when they were struck down by the ruling in Loving v Virginia.
Now, that doesn’t necessarily mean the Supreme Court will do the same thing here. But if that pattern holds, it would likely take a few of the states that passed their bans on same-sex marriage from 2004-2008 to start repealing them, which I believe will start to happen in 2014 and 2016. That’s why I’ve predicted that the Supreme Court will not issue a broad ruling striking down such laws on equal protection grounds until after that point (though I do expect narrow rulings in the two current cases that result in making things a bit better).
As usual, this case almost certainly turns on Justice Kennedy, who authored the two most important gay rights decisions in the nation’s history, Lawrence v Texas and Romer v Evans.