The Supreme Court is poised to take up a same-sex marriage case this term, and they have plenty to choose from, most being cases that deal with the constitutionality of the Defense of Marriage Act (DOMA).
If the High Court does take up one of these cases, Justice Anthony Kennedy is widely expected to be the deciding vote. In a HuffPost Live interview with hosts Mike Sacks and Ahmed Shihab-Eldin, Michael Klarman, a Harvard Law School professor and author of "From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage," speculated on whether Kennedy might consider how he'd be viewed by the history books when casting a DOMA vote.
"I think he cares about his historical reputation, and on this one the handwriting is on the wall," Klarman said after mentioning the dramatic change in public opinion on same-sex marriage over the last several years.
When Kennedy sides with the four liberal justices, who are all expected to vote in favor of gay rights, he is the most senior justice and gets to decide who writes the opinion on the case.
"One might imagine it would be pretty tempting to write the opinion that would quickly become the Brown v. Board of Education of the gay rights movement," Klarman said.
Striking down the contested section of DOMA would bar the federal government from denying certain federal benefits to same-sex spouses, but such a decision would also allow states to recognize or deny same-sex marriage rights on their own terms. This may be a more attractive option for Kennedy than taking on the constitutionality of Proposition 8, which, if broadly ruled upon, could risk a national backlash by creating a federal right to same-sex marriage at a time when only nine states allow it.
"[Kennedy] is much more inclined to take a dominant social norm, turn it into a constitutional command and suppress a handful of recalcitrant states," added Klarman. "He's never in his career -- thus far -- been willing to do the opposite, which is to take a norm that's been emerging in nine or ten states, turn that into a constitutional command and suppress the remaining states, but he might."
Justice Kennedy sided with the court's liberal wing on the two major gay rights cases to date, Lawrence v. Texas and Romer v. Evans.
For the full interview with Klarman and Vickie Henry, a senior staff attorney at the Gay & Lesbian Advocates & Defenders, watch the full segment at HuffPost Live.
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