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Same-Sex Marriage, from the Ivied Halls

March 17, 2013

Harvard Magazine’s current issue includes an outstanding summary of the history and status of same-sex marriage, in “How Same-Sex Marriage Came to Be,” by Michael Klarman, a Harvard law professor. Professor Klarman begins his story with the decriminalization of gay sex beginning in the 1960s. He narrates the first same-sex marriage successes – in the Hawaii Supreme Court in 1993, the backlash against that success over the next 15 years, and the decisive turning of the tide in the last few years.

Professor Klarman traces the popular, judicial and legislative progress of the movement, both in his narrative and with a useful graphic timeline. His tale ends with the two issues now pending in the Supreme Court. He predicts, as I have, that the court will overturn the section of the Defense of Marriage Act that precludes federal recognition of otherwise legal same-sex marriages. He is somewhat less pessimistic than I am on the Proposition 8 case. As I do, he also foresees a 5 – 4 vote, with Justice Kennedy deciding the outcome, but he is hopeful that Justice Kennedy will be tempted “to write the opinion that within a decade or two will likely be regarded as the Brown v. Board of Education of the gay rights movement.”

Regardless of the Prop 8 outcome, Professor Klarman, like me, is very optimistic about the longer term future of same-sex marriage. He notes that opinion polling in recent years shows popular gains in same-sex marriage approval along the lines of three percent per year. He quotes Nate Silver’s projection from opinion polling that, by 2024, “even the last holdout, Mississippi, will have a majority in favor.” Thus, the professor concludes, “an intense struggle over marriage equality is likely to continue for several more years, even though the ultimate outcome is no longer seriously in doubt.”

Professor Klarman comes to this conclusion without the benefit of knowing – since it no doubt happened after his deadline – that prominent national conservatives and hundreds of major corporations filed friend of the court briefs in support of marriage equality. This is not so important for the outcome of the Supreme Court cases, but it is very important as a measure of the breadth of support that marriage equality now enjoys.

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