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Ruth Marcus: The high court's same-sex marriage conundrum

BY RUTH MARCUS Published: December 12, 2012

Still, the prospect that the justices could decide on the constitutional right to marry is unsettling, even scary, because it's far easier to count five votes for “no” than for “yes.”

Much like the step-by-step litigation that produced Supreme Court victories against racial discrimination, the court may need time — and new members — to get there.

Worrying that this case is premature is very different from saying that court protection is unnecessary. Some observers have looked at rapidly changing attitudes and suggested that court intervention is unwarranted and unwise.

This is an updated — and equally wrongheaded — version of the contention that the court's declaration of a constitutional right to abortion pre-empted formation of a national consensus on the divisive subject. If only the court had stayed out, this argument goes, states would have moved on abortion rights.

Nonsense. The movement toward same-sex marriage — three states just approved marriage-equality measures, the first time such efforts had succeeded at the ballot box — is gratifying and instructive. Whether the Supreme Court follows election returns, the justices are exquisitely aware of the public mood.

Yet leaving the issue solely to public whim won't work. Mississippi will never allow same-sex marriage, or, if it could choose, abortion. Its citizens deserve the same rights as those of Massachusetts.

This is the fundamental meaning of a national Constitution and the role of federal courts. Constitutional protection for marriage equality may not be immediate, but it is, ultimately, both essential and inevitable.



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