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ABA Journal – Law Professor: Gay Marriage Advocates Should Get Case to SCOTUS Sooner Rather Than Later

Posted by 4love2love on June 29, 2011

Posted Jun 28, 2011 3:27 PM CDT
By Mark Hansen

Mainstream gay rights organizations have been in no hurry to have the issue of same-sex marriage taken up by the U.S. Supreme Court.

Conventional wisdom has it that such a lawsuit wouldn’t be prudent until a majority of states allow gay marriage and public opinion clearly reaches a consensus point in favor of the idea.

But that strategy may prove to be unwise in the long run, according to a Washington Post op-ed by Justin Driver, a professor of constitutional law at the University of Texas.

The current court may be prepared to recognize a constitutional right to same-sex marriage, even though the issue remains hotly contested. And by deferring a federal lawsuit in the hope that public opinion will improve, gay rights advocates could find that a promising window has been closed, he says.

If Justice Anthony Kennedy, widely regarded as the swing vote on gay rights issues, were to retire before such a case reaches the court, the delaying tactic could backfire, Driver suggests.

“The gay equality movement has had few judicial friends more staunch than Kennedy, the author of the court’s two leading decisions honoring that cause,” he writes. “In the event that [President)] Obama should not win re-election next year, it seems probable that a Republican president would attempt to replace Kennedy, who turns 77 in 2013, with a justice less receptive to gay equality.”

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