Prediction: Justice Kennedy Will Write Majority Opinion Legalizing Gay Marriage
One of those great articles appeared this week in The New York Times regarding the issue of the Supreme Court taking up the matter of gay marriage. While the whole column on the Op-Ed page is really worth a read, I think this portion below is still the part that matters. The thrust of this argument is the one I have pondered and promoted for months.
Justice Kennedy wants to be on the correct side of history, and wants to be viewed in a positive light not only now but for decades to come.
I have argued that Kennedy wants to be seen in the same light of history that John Marshall Harlan is viewed over civil rights type cases he ruled on near the start of the 20th century. Harlan proved that even a powerful dissent carries power with the writers of history, but I strongly feel Kennedy will play his cards so to write the majority opinion legalizing gay marriage.
Justice Kennedy’s opinions often suggest that he wants to be on the right side of history, which matters greatly here because the future of gay marriage in America is so clear. Support has increased from less than 25 percent in 1990 to roughly 35 percent in 2004 to over 50 percent today. At the current rate, a substantial majority of Americans will support gay marriage within the next dozen years.
A Supreme Court ruling in favor of gay marriage would divide the nation roughly down the middle, much as the Court’s ruling against racial segregation, in Brown v. Board of Education, did in 1954. Yet, within two decades, the Brown decision was almost universally revered. A decision protecting same-sex marriage would probably also soon become historic. Indeed, some lower courts have already recognized the significance of pro-gay-marriage rulings. The author of Massachusetts’s pioneering gay marriage ruling compared it to that court’s prohibition of slavery in the 1780s. In 2008, the California Supreme Court struck down a ban on same-sex marriage, proudly invoking its 1948 decision that invalidated a ban on interracial marriage. (The California ruling was subsequently superseded by Proposition 8, a voter initiative that amended the State Constitution to ban same-sex marriage.)
Of course, predicting how Supreme Court justices will vote in particular cases is risky business. Who could possibly have forecast the convoluted path that Chief Justice John G. Roberts Jr. took to uphold the Affordable Care Act, President Obama’s signature health care legislation, last term? But on the whole, it seems likely that when the case arises, Justice Kennedy will be tempted to write an opinion that would quickly become the Brown v. Board of the gay rights movement.