POLITICS

Morning Examiner: Why the Supreme Court will recognize gay marriage

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Politics,Beltway Confidential,Conn Carroll

Today, the Supreme Court will hear oral arguments in the case of Hollingsworth v Perry, which challenges California’s prohibition on recognizing same-sex marriages. Tomorrow, the Court will hear United States v Windsor, which challenges the 1996 Defense of Marriage Act’s (DOMA) definition of marriage as only a union of one man and one woman. Never has gay marriage received so much attention from the Supreme Court, prompting Politico, to ask this morning, “Can gay marriage survive SCOTUS loss?”

But this is almost certainly the wrong question. As Obamacare taught us, Politico almost certainly has this question backward. Remember, Chief Justice John Roberts initially voted to overturn Obamacare on the merits of the case and the law. But he then switched his vote for entirely political reasons to protect his legacy as Chief Justice. In other words, the legal arguments that lawyers will make this week and the legal questions the justices will ask, are all almost entirely irrelevant. The only question on Chief Justice Roberts mind when deciding these cases will be, “Can SCOTUS survive a gay marriage loss?”

And it almost certainly can not. According to a new Pew poll published this week, the Supreme Court’s favorability is already at historic lows. Meanwhile, the popularity of gay marriage has never been higher. The latest CNN poll shows 53 percent of Americans think marriages between gay and lesbian couples should or be recognized by the law. Fifty-eight percent of Americans told The Washington Post the same thing. Even Fox News’ latest poll shows that 53 percent of Americans believe same-sex couples have a constitutional right to marry.

There simply is zero chance that Roberts would put his Court on the wrong side of history by upholding California’s Proposition 8 or DOMA. At best, Roberts will take a weaselly way out and find ways of skirting the substance of the issue on each case. But even that is unlikely. Instead, same-sex marriage opponents should begin preparing themselves now for the high likelihood that gay marriage is about to become a constitutional right.

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