The Chi Trib reviews recent gay rights rulings from the Supremes.
MORE: AllahP is sagacious in trying to assess the political divides on the court:
I’m surprised. I said a few weeks ago that I thought neither wing of the Court had an incentive to grant cert on gay-marriage cases right now. The conservative wing should be worried that Kennedy, who’s written two landmark opinions supporting gay rights, will vote with the liberals. The liberal wing should be worried that a Court ruling imposing gay marriage nationwide will generate a ferocious backlash just at the moment that SSM supporters are starting to win state referendums.
It only takes four votes to grant cert. Which side decided to roll the dice?
But let me add this - Chief Justice Roberts is a young man with plans to be on the court for decades to come, and the direction of the tide on gay marriage is obvious. Is he going to write a majority opinion next summer limiting down gay marriage and then write the opinion overturning himself five, ten or twenty years from now?
Or will the seemingly legacy conscious Chief Justice vote to limit gay rights now and write the eventual, inevitable minority opinion down the road? That gives him a chance to get on the short list with 'Dred Scott' and 'Korematsu' among the worst decisions ever - at least, the short list kept by every liberal law school and historian (i.e., nearly all of them).
I don't think Roberts will stand athwart history yelling "stop". That said, I won't be surprised to see the court punt, or at most deliver a limited states rights opinion. Let me hark back to this old post on 'Virginia v. Loving', the 1967 case in which the Supreme Court struck down anti-miscegenation laws. My point was that the court followed rather than led on that issue, and this excerpt from law prof Randall Kennedy of Harvard was offered in eivdence:
The way that the Supreme Court approached the ban on interracial marriage is a revealing reminder of the cautious manner that the tribunal typically deals with volatile social controversies. It encouraged other lawgivers to lead the way. In 1948 the Supreme Court of California ruled that that state's ban on interracial marriage violated the federal constitution's Equal Protection Clause. Yet, even after having invalidated de jure segregation in public schooling in Brown v. Board of Education, the U.S. Supreme Court was afraid to touch the emotional issue of interracial familial intimacy. In 1955 the Court considered reviewing a conviction under Virginia's ban, but ultimately decided to duck the issue. During the following decade, a dozen states repealed laws prohibiting interracial marriage and the Civil Rights Movement challenged the white supremacist notions from which these prohibitions stemmed. Only near the end of that remarkable era of struggle against racism was the Supreme Court willing to rule on the (un) constitutionality of anti miscegenation laws. In Loving, the Court struck down Virginia's statute on the grounds that it represented merely an "invidious racial discrimination" and that it unjustifiably deprived the defendants of one of the "basic civil rights of man."
It took the court from 1948 to 1967 to resolve this, and a lot of heavy civil rights lifting had already been done by Congress.