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Continued: Opinion roundup: The Supreme Court and gay marriage

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  • Last update: December 11, 2012 - 2:13 PM

Finally, language in some Kennedy opinions suggests an attentiveness to historical legacy, and the handwriting on the wall on marriage equality is crystal clear. Support among Americans has increased from less than 25 percent in 1990, to 30 percent to 35 percent in 2004, to more than 50 percent today. In addition, polls show that 70 percent of Americans aged 18 to 29 support gay marriage, and that is unlikely to diminish as these people age.

Many state legislators have explained their votes in favor of gay marriage on the ground that they wanted to be on the right side of history and to have their children be proud when reflecting on their parent's legislative record. Judges authoring opinions in support of gay marriage have frequently invoked examples of courts being on the right side of history. Chief Justice Margaret Marshall, the author of Massachusetts' pioneering gay-marriage ruling, has compared it to that court's 1790s ruling that barred slavery under the very same constitutional provision. Similarly, the California Supreme Court's decision in favor of gay marriage proudly invoked its landmark 1948 ruling that invalidated a state ban on interracial marriage.

In 1954, the court's ruling in Brown v. Board of Education, which invalidated racial segregation in public schools, split the nation in half. Within two decades, however, it had become iconic. A high court ruling in favor of marriage equality would similarly divide the nation in 2013. Yet, given how quickly public opinion is evolving, within a decade or so such a decision would probably also be almost universally applauded. What justice would not be tempted to author the opinion that within a few short years likely would become known as the Brown vs. Board of Education of the gay rights movement?

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