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Why the Supreme Court Is Likely to Rule for Gay Marriage
Why the Supreme Court Is Likely to Rule for Gay Marriage

Time; March 25, 2013

The Supreme Court hears arguments in two historic cases about whether same-sex couples have the right to marry. It is always difficult to predict Supreme Court rulings, but there is good reason to expect some kind of victory for marriage equality. The main reason: Justice Anthony Kennedy, the man who is likely to cast the deciding vote.

The court is considering challenges to the Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages, and Proposition 8, the California ballot initiative that bans same-sex marriage in that state. These challenges are historic: though state and federal courts from Alaska to New Jersey have considered same-sex marriage, the Supreme Court has never heard a case about it.

(MORE: Why Republicans Are Saying “I Do” to Gay Marriage)

The Supreme Court is known for its sharp partisan divide. The four-Justice liberal bloc is likely to be sympathetic to gay marriage, while the four-Justice conservative camp is likely to be hostile — though how Chief Justice John Roberts will come out is far from certain. In the middle is the court’s usual swing Justice, Justice Kennedy, who has — surprisingly — been the court’s most steadfast supporter of gay rights.

A Reagan appointee, Justice Kennedy is no liberal, as he has shown on issues from affirmative action to corporate campaign spending. But he has repeatedly sided with gay litigants before the court. In 1996, early in the gay-rights legal revolution, he wrote the majority opinion in Romer v. Evans, striking down a Colorado constitutional amendment that prevented localities from passing laws protecting gay people from discrimination. In 2003, he wrote the landmark ruling Lawrence v. Texas, which struck down Texas’ law against gay sex.

(MORE: What Will Justice Kennedy Do?)

It is not clear why Justice Kennedy — who has not been a particular friend of racial minorities in civil rights cases — has been so sympathetic to gay rights. One factor could be that, as a law professor told the Los Angeles Times, he is a “California Establishment Republican” who has traveled “in circles where he has met and likes lots of gay people.” A new Pew Research poll found that the biggest factor in changing people’s minds in favor of gay marriage is knowing a gay person.

Or it could be other factors: people have all sorts of reasons for the beliefs they hold. What matters is that in Justice Kennedy’s case, the sympathy for equal rights for gay people seems both sincere and deeply held. In his 2003 opinion striking down Texas’ sodomy law, Justice Kennedy not only said that the court’s 1986 ruling upholding a similar Georgia law was wrong — he insisted that its “continuance as a precedent demeans the lives of homosexual persons.”

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