Supreme Court Unlikely To Deliver Gay-Marriage Mandate

Posted by on Dec 08, 2012 at 10:33 am

The U.S. Supreme Court has agreed to hear a pair of cases that could — but likely will not — establish a nationwide, constitutional right to gay marriage. The cases leave the high court plenty of escape hatches from taking a big step the country may not be ready for yet, said William Eskridge, a constitutional law scholar at Yale Law School who contributed the legal reasoning that helped decide one of the cases, a challenge to an anti-gay marriage referendum in California.

The Supreme Court agreed to hear Hollingsworth v. Perry, the California case, as well as U.S. v. Windsor, a challenge to the federal Defense of Marriage Act. Both go to the core of one of the most divisive issues in American politics, the equivalent of interracial marriages in the 1950s. Very few people today would seriously support legal restrictions on a marriage between a white man and a black woman, but it wasn’t until the high court’s 1967 decision in Loving v. Virginia that such laws were declared unconstitutional nationwide. Eskridge, whose scholarship has focused on how the Supreme Court adapts to mass political movements, thinks the country hasn’t yet reached a similar consensus on gay marriage.

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