Shifts in public opinion on gay marriage could influence Justice Kennedy and the fate of same-sex marriage in the Supreme Court, writes Harvard Law School Professor Michael Klarman in an op-ed in The Los Angeles Times. The piece, “Is public opinion on gay marriage ahead of the Supreme Court’s,” appeared in the August 15, 2010, edition. Klarman is the author of “From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality,” which won the 2005 Bancroft Prize.
Courts are almost never at the vanguard of social change. In general, they have required sweeping cultural shifts such as school desegregation only when it was clear that a substantial percentage of Americans supported them. So what does this portend for same-sex marriage litigation, which is likely to end up before the Supreme Court eventually, especially in light of recent federal court rulings in Boston and San Francisco in favor of same-sex marriage?
The first same-sex marriage cases, filed by gay couples in the 1970s, were nearly laughed out of court. But by the time of last week’s ruling in support of same-sex marriage, more than 40% of the nation — and an even greater percentage in California — supported it. The question now will be whether that’s enough of a cultural shift to influence the Supreme Court’s thinking…