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Marriage and the Court

Before the U.S. Supreme Court ended school segregation in 1954, Chief Justice Earl Warren worked hard on his colleagues to have it be a unanimous decision. He felt that it was important the court speak with one voice on an issue that would have such an impact on society.

Well, however the court rules on same-sex marriage, it is unlikely to be unanimous. There are several justices who seem, from past cases, to be ready to recognize and protect such unions.

But it is hard to imagine them being joined by Samuel Alito, Antonin Scalia or Clarence Thomas. We will remain a society divided on this issue, as on so many others.

I have written about the same sex marriage issue for years, and know something about the history of America’s highest court. What I think was remarkable about yesterday’s oral arguments was the festival atmosphere surrounding them.

Dana Nessel, the attorney for two nurses who are at the heart of this case, kissed her girlfriend and got engaged on the courthouse steps, at least according to Facebook, the medium of the modern era.

Most of the media seems to be operating from the perspective that this is an idea whose time has clearly come, and that the oral arguments in court were just a pro forma step.

One of the headlines in a Detroit paper today reads:

Hazel Park nurses: A step closer to a legal family

But that headline is not at all supported by the story it labels.

Thinking you know how the court will rule is always a dangerous assumption.

Three years ago, nobody imagined that the constitutionality of the Affordable Care Act—Obamacare – would be upheld by the vote of Chief Justice John Roberts.

Nor did anyone imagine that the court would find it constitutional, not on the basis of the commerce clause, which is what the oral arguments were about, but on the basis that it really was a tax, which the court has no power to reverse.

Most think that this court is likely to rule that same-sex marriage is constitutional, by either a five-to-four or six-to-three vote.  But even if so, we don’t know how far they will go to protect the rights of same-sex couples.

Justice Samuel Alito may not be your all-time favorite justice, but he asked a question worth thinking about:

“How do you account for the fact that until the end of the 20th century, there never was a nation that recognized marriage between two people of the same sex?” 

To be sure, society changes, and court rulings have reflected that before, but there can be consequences when the court gets too far ahead of the public.

The ruling in Roe v. Wade 42 years ago may have been the right one, but it has come to divide this nation on all sorts of fault lines more deeply than any other modern decision I can remember.

But the fact is that same-sex marriage is now legal in most of America, if not in Michigan.

Thirty years ago, nobody even dreamed this would ever come before the highest court. In a way, court decisions are like life itself: When it comes to seeing the future, you simply never can tell.

Jack Lessenberry is Michigan Radio's political analyst. 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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