The Supreme Court Could Do Gays A Favor By Issuing A Moderate Ruling On Marriage
In just a few weeks, the court will hear a challenge to Proposition 8, a ban on gay marriage that California voters approved after the state's supreme court legalized same-sex marriage.
The court has a few different options — aside from finding it was perfectly legal for California voters to take away a right gays already had (which would be a huge blow to gay rights).
The Supreme Court could go in the opposite direction by effectively making gay marriage the law of the land in America, which Bazelon says would be a "giant step."
But the court might be wise to take more "medium-sized steps," she says. "This one is a winner in the polls: Let’s let it move through the country gradually, because that’s the most enduring, least divisive way to make change," she said.
The more incremental steps the court could take include finding Prop 8 was unconstitutional because it took away a right gays already had.
Or it could buy the Justice Department's argument that states that allow gay civil unions have to allow marriage too because they're violating the Constitution's right to legal equality.
Bazelon makes a good point that the incremental steps might be the way to go. UCLA law professor Adam Winkler has pointed out to BI that a broad ruling for gay marriage could spark a backlash from gay marriage opponents.
"Many people in the gay rights movement feel that marriage equality is going to happen because of demographic changes and cultural changes, and that the court by stepping in may hurt that progress," Winkler told us.
"You can be sure that if the court says gay marriage is constitutionally protected," he added, "there will be efforts to amend the constitution."
But given "swing voter" Anthony Kennedy's deference for states' rights, it seems unlikely that the high court will force every state to allow gay marriages.