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Court ruling reinstating gay marriage ban may actually advance gay rights

Today let’s fire up the old time machine and go back to downtown Grand Rapids, say, on this day in 1964.

That would have been a Saturday, so we probably will be able to catch a lot of people at home. We’ll pretend to be taking a poll, and we’ll ask:

“Excuse me, but we’d like your opinion on this question. Fifty years from now, do you think it will be more likely that A) the United States will have a colony on the moon, or B) that homosexual marriage would be legal in many states of the union?”

Well, I can’t predict the future, but I do know something about the past. We would have had to knock on a lot of doors before we found anyone who would have thought gay marriage was even a remote possibility. In fact, it’s more likely we’d be punched in the nose for even suggesting such a thing. Society has come a long way.

Those who support same-sex marriage were dismayed by this ruling. News stories called it "major setback" for them. But in fact, it is nothing of the kind.

Yesterday, a three-federal judge panel of the Sixth Circuit Court of Appeals overturned a ruling striking down Michigan’s same-sex marriage ban, temporarily reinstating it here and in three other states.

The vote was two to one. Two judges, both with a history of rulings in favor of religious conservatives, essentially ruled that this should be left up to the states.

The third justice dissented, noting that in this country, the rights of minorities have frequently been won and protected by the courts.

Those who support marriage equality, and that includes me, should welcome this, for one reason: it makes it virtually certain that the issue will come before the U.S. Supreme Court, sooner rather than later.

That’s something that has to happen. I am not a lawyer, though I teach media law and have covered major trials for the New York Times. But it seems clear to me that precedent indicates a nationwide ruling on marriage rights is indicated here. The high court has said that interracial marriages could not be legal in some states and illegal elsewhere, which was in fact the case half a century ago.

The court has also ruled that it was unconstitutional for minorities to have the right to vote in Massachusetts but not in Mississippi, which was once the case. It is hard for me to see how the court could allow same sex marriage in some states but not others. But the highest court has surprised legal scholars before.

What does seem certain, based on earlier rulings, is that the court will not rule same sex marriage itself unconstitutional.

Which means the worst would be that the justices find Michigan’s ten-year-old ban legal. If that happens, the challenge would be clear.

Supporters of marriage equality would have to gear up to repeal the ban, something polls show a narrow majority now favors. Abraham Lincoln knew that a house divided against itself cannot stand, and that huge moral issues have to be decisively settled.

Unless I miss my guess, yesterday’s ruling brought that settlement a little closer.

Jack Lessenberry is Michigan Radio's political analyst. You can read his essays online at Michigan Radio-dot-org. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.

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