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Pamela Karlan: The Path To Marriage Equality?

this article has been written by Daniel E. Pritchard from Boston Review.

In the May/June issue of Boston Review, we have another analysis of the battle for marriage rights. Constitutional expert Pamela Karlan looks at Supreme Court decisions as the reflection ? not the cause ? of progressive social change in America, from school desegregation to interracial marriage, and asks: “How does this history?this interplay between courts and democratic politics?bear on the question of marriage equality?”

To begin, I cannot think of a contentious social issue on which public opinion has shifted more rapidly. We have moved in roughly a generation from a nation in which no state provided legal recognition to same-sex couples to one in which two in five Americans live in states that do: eight states and the District of Columbia now either issue marriage licenses to same-sex couples or recognize same-sex marriages performed elsewhere. Without that change, the Supreme Court would not even consider legal protections for same-sex couples.

Yet, in contrast to Loving, on the same-sex marriage issue the Court may have to make a decision before a national consensus emerges. In recent years, 26 states have adopted constitutional amendments to prohibit same-sex marriage, making it unlikely that the political process will produce national uniformity any time soon. If the Ninth Circuit Court of Appeals affirms a federal trial court?s decision that California?s marriage restrictions violate the equal protection and due process clauses, this will create a conflict among lower courts on a question of constitutional law. That is one circumstance identified in the Supreme Court?s rules as a reason to hear a case. Even if the California marriage case fizzles out?a real possibility, given state officials? refusal to appeal?other cases will almost certainly bubble up.

Read the complete article: http://bostonreview.net/BR36.3/pamela_s_karlan_same_sex_marriage.php

Thanks to Daniel E. Pritchard for sharing this article with our readers and fans online. Daniel is the Marketing and Promotions Manager of Boston Review an independent and nonprofit magazine that cover lots of ground?politics, poetry, film, fiction, book reviews, and criticism.

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