Fate of Gay Marriage May Rest With Kennedy

Being on the 'right side of history' may be too tempting to resist: Law professor
By John Johnson,  Newser Staff
Posted Dec 8, 2012 11:43 AM CST
Fate of Gay Marriage May Rest With Kennedy
Supreme Court Justice Anthony Kennedy presides over a representation of "The Trial of Hamlet" at the Shakespeare Center of Los Angeles in 2011.   (AP Photo/Damian Dovarganes, File)

The Supreme Court has agreed to take up two cases related to gay marriage, and one is much easier to predict than the other, writes Harvard Law professor Michael Klarman in the Los Angeles Times. The Defense of Marriage Act, which denies federal benefits to same-sex couples, is almost certainly doomed. "Conservative justices who prize federalism and liberal justices who endorse marriage equality may combine to invalidate DOMA by a sizable margin," writes Klarman.

The other, on California's Prop 8, has bigger stakes—it "could clearly establish or deny a constitutional right to same-sex marriage"—and it's much tougher to call. Anthony Kennedy will likely be the deciding vote, and Klarman can make the case, based on prior rulings, of the justice going in either direction. But Klarman ends the column by drawing a parallel to Brown vs. the Board of Education in 1954, which invalidated school segregation. It, too, split the nation at the time, but public opinion on race evolved, just as it is doing now on homosexuality. "What justice would not be tempted to author the opinion that within a few short years likely would become known as the Brown vs. Board of Education of the gay rights movement?" Full column here. (More Defense of Marriage Act stories.)

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