California’s ban on gay marriage is likely to fall soon, due to a pair of developments in the past week. What remains uncertain is whether same-sex marriage will become lawful in just a score of “blue states,” or the norm throughout the nation.
Public opinion on marriage for same-sex couples has shifted with almost unprecedented speed for a major issue. Even without a court ruling, that shift could doom restrictive marriage laws in liberal states such as California. It also is likely to have an effect on the U.S. Supreme Court itself, in particular with Justice Anthony M. Kennedy and possibly Chief Justice John G. Roberts.
Throughout his long career, Kennedy has been willing to make major changes in the law on issues including the death penalty, gun rights and gay rights. Kennedy has been a strong, steady proponent of constitutional principles such as free speech, individual liberty and limits on government power. But before signing on to major changes — abolishing the death penalty for young murderers, for example — he has wanted to feel comfortable that the change was in line with public opinion and the trend in the law.
“Among all the justices, he is most concerned about public opinion,” New York University law professor Barry Friedman said of Kennedy. “The more there is a groundswell of support for gay marriage, the more it is likely he will vote to support it.”
Kennedy, along with others on the court, probably also would resist going too fast. The current justices, both liberals and conservatives, say the court of the early 1970s made a mistake by striking down all state laws on abortion and capital punishment.
Better to move in line with — or just slightly ahead of — shifting opinion, they believe.
In California, public opinion clearly has shifted since Proposition 8 passed in 2008 and banned same-sex marriage. A Field Poll released this week showed that California voters, by a nearly 2-1 margin, now approve of allowing same-sex couples to marry, a finding in line with states that legalized gay marriage in November’s election.