U.S. Supreme Court

Justices Are 'Cornered' on Gay Marriage Cert; Will Activists Regret Test Cases?


By tradition, the U.S. Supreme Court will review every lower court decision striking down an important law. And that could pose a problem for gay marriage activists.

The U.S. Supreme Court will consider a number of cert petitions concerning gay marriage at its conference on Friday, and the justices are “cornered,” according to SCOTUSblog founder Tom Goldstein. The court can’t stay out of the controversy, and it’s not clear that gay marriage advocates will be pleased with the outcome.

“These test cases may be too much, too soon,” Goldstein writes. “Too much because Justice [Anthony] Kennedy—the decisive vote—is a conservative on a conservative court, and many conservatives view heterosexual marriage as foundational. Too soon because while our culture has rocketed ahead to acceptance of gay marriage, the court generally rides a horse and buggy.”

Goldstein says a Supreme Court decision recognizing the right of same-sex couples to marry is inevitable, but it may not take place for years to come. The court has not yet had time to adapt, he writes.

A bad test case could bring harm. Bowers v. Hardwick was an ACLU test case, Goldstein says, and it took 17 years to overrule the “vicious” 5-4 decision upholding sodomy laws.

“Still, who am I to say these cases are a mistake?” Goldstein writes. “I am straight and married. And I am white and well off. I got mine.

“I could not have told Thurgood Marshall to slow down. And I cannot say that to Edith Windsor, Kristin Perry, or Joseph Diaz either. These laws cause them and their loved ones grievous harm. They have every right to seek justice.

“When the decisions are issued in late June, everyone involved will be a hero or a goat. I do not know which. But I do worry.”

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