Supreme Court May Be Interested In Gay Marriage Ballot Measures This Fall


While I have the utmost respect for Jeffrey Toobin I am not sure I agree with this idea that the Supreme Court is more mindful of how far people have moved forward on weighty social issues prior to their dealing with them in a constitutional manner from the bench.

His theory is not a new one, and clearly there are many ways to ponder it along with the entire gay marriage legal arguments in relation to the current make-up of the Supreme Court.   I am of the mind, given the many federal judges who have ruled on the matter, and consistently laid out a clear legal framework as to why denying gay marriage is unconstitutional, that the Supreme Court will rise above the petty and protect the minority in this nation.

In Ginsburg’s view, the Court generally should follow rather than lead on  such controversial social issues. This is what happened with the Court and  racial intermarriage. It was not until 1967, in Loving v. Virginia, that the  Justices got around to declaring that states could no longer ban interracial  marriage. Many (but not all) such laws were ignored or obsolete by that point.  This is not to diminish the significance of Loving. The case was and remains a  key practical and symbolic statement about race and the constitution. But by  1967, the hard work of changing the country on this issue had already been done  by the civil-rights movement. The Court was a lagging indicator of where the  country already was.

And so while both cases, as I wrote recently, are potential landmarks,  neither may  turn out to be as important as four ballot initiatives. The votes will give us  the best picture of where the country is on same-sex marriage. The snapshot will  be imprecise, of course. All four states are generally Democratic in their  orientation, so they are not a true cross-section of country. But given the  Court’s history, even the more liberal justices may be reluctant to impose  same-sex marriage on the country if the people—the voters—repeatedly say that  they do not want it. The polls predict close races in all four states. The  results will echo well beyond their borders.

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