“But when that decision came down, there wasn’t a ripple, there wasn’t any disruption,” Boies said. “Everybody simply accepted it . . . because they fundamentally knew it was the right thing to do. The same thing will become true here.”
Those who oppose same-sex marriage said that Loving did not change the fundamental nature of marriage as being between a man and a woman and that the number of states that banned mixed marriages was a fraction of the number that prohibit same-sex marriage.
The Post’s Chris Cillizza is joined in a Google Hangout by Post SCOTUS reporter Bob Barnes, GLAD’s Mary Bonauto, The Advocate’s Matthew Breen, Heritage Foundation’s Ryan Anderson and SCOTUS blog’s Amy Howe to discuss the cases ahead of the Supreme Court hearings.
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All of which could point to a go-slow approach — and the court has left itself plenty of options.
The broad constitutional question about the right to marry is raised only in the California case. But the court could decide whether California voters have the right to amend the state constitution without deciding the federal question.
Or it could find that since California officials have declined to defend Prop 8, the case is not properly before the Supreme Court. That would leave in effect a lower-court decision overturning the same-sex marriage ban but limit the decision to California.
There are similar technical questions in the Defense of Marriage Act case, since the Obama administration believes the 1996 law is unconstitutional and has declined to defend it.
Two justices will get the most attention in this week’s oral arguments. Kennedy is the court’s most outspoken advocate of states’ rights. But he also provided the critical vote and employed soaring rhetoric in writing the opinions striking down a Colorado initiative that would have denied discrimination protection to gays and objecting to state sodomy laws that targeted homosexuals.
The other is Chief Justice John G. Roberts Jr. His conservatism would seem to weigh against same-sex marriage, but as chief justice he also worries about the long-term influence of the court on a subject in which the public mood is clearly in flux. “He particularly may look for a way to avoid ruling against gay marriage in these cases, ” Friedman said, “even if he is not prepared to rule for it.”