For Neanderthals and mental midgets on the U. S. Supreme Court like Antonin Scalia and Clarence Thomas, respectively, public opinion and concerns about how they will be viewed by posterity seems to mean nothing. Scalia will champion his own bigoted religious and racial views and Thomas can be relied upon to act like an "Uncle Tom" and grovel to the will of his white Christianist masters. But some on the Court, Anthony Kennedy in particular and possibly even John Roberts, may be concerned about how their ruling will stand over time, especially given the rapid changes in public support for gay marriage. Do they really want to join in a opinion that future generations will view as backwards and bigoted? A piece in the Los Angeles Times speculates on this issue. Here are excerpts:
WASHINGTON — Public opinion on marriage for gay and lesbian couples has shifted with almost unprecedented speed since California voters banned such unions in 2008.
That shift could influence the Supreme Court, in particular Justice Anthony M. Kennedy and possibly Chief Justice John G. Roberts Jr., as it decides whether to uphold Proposition 8 in coming months.
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.
"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."
In California, public opinion clearly has shifted since Proposition 8 passed in 2008 and banned same-sex marriage. A Field Poll survey 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.
Verrilli's brief filed Thursday applied that same approach in the Proposition 8 case. It argues that because California and seven other states — Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island — already have given gay couples full legal rights, there is no justification for denying them a right to marry. This is what some lawyers have dubbed the "eight-state solution."
If the court were to adopt a version of the eight-state solution, it would allow most states to decide for themselves, as Pugno advocates — at least for now. But it is also true that if the justices decided discrimination against gays violates the Constitution's guarantee of equal protection of the laws, that same argument eventually could be used to invalidate the remaining state laws against same-sex marriage. The justices might be particularly willing to do so if the majority of states already had acted.
In 1967, the Supreme Court ruled that laws barring mixed-race couples from marriage violated the Constitution. By then, only 16 states still had such laws on their books.
Obviously, I continue to hope for a broad nationwide ruling on marriage because without it, here in Virginia gay marriage will be a long time in coming- - or at not until the power of The Family Foundation over the Republican Party of Virginia is broken.