The risks for gay marriage at the Supreme Court

from Stand Firm by Greg Griffith

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. On the then-divisive issue of interracial marriage, the Supreme Court deliberately dawdled until more states had lifted their bans. Waiting is hard. Losing is worse.

As justification for such anxieties, look no further than President Obama. This year, he finally backed same-sex marriage. But he stopped short of declaring that the Constitution protects the right of same-sex couples to marry, as it does interracial couples.

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 preempted 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.