The Supreme Court’s Gay-Marriage Gradualism Reply

By Daniel McCarthy

The Supreme Court’s rulings on the Defense of Marriage Act (struck down) and California’s Proposition 8 (the court disclaimed jurisdiction) were about the only rulings one could expect from a court of four liberals, four conservatives, and Anthony Kennedy. It would have overturned everything we think we know about Kennedy if the court had upheld DOMA. But an expansive ruling on Prop 8 effectively legalizing same-sex-marriage nationwide would have been remarkable from a court that earlier this week curtailed affirmative action in higher ed and the Voting Rights Act. The justices in the majority on Proposition 8 might seem surprising—Roberts and Scalia joined liberals Breyer, Ginsburg, and Kagan—but if one may attribute political motives to the bench (surely not?), I’d suggest Scalia and Roberts were trying to limit the precedent while Breyer, Ginsburg, and Kagan were going for what they could get.

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