On the other hand, the recent successes might also convince Justice Kennedy and/or other justices that the political process – and democracy itself – is an engine of change sufficient enough to guarantee the rights of gay Americans.
If gay-rights advocates have enough political clout to win legislative favor in three states within 12 days, perhaps they don’t need the intervention of the highest court in the land, according to this view.
In a key exchange during oral argument at the Supreme Court on March 27, Chief Justice John Roberts agreed that there had been a sea change in American attitudes about gay marriage in recent years.
“I suppose the sea change has a lot to do with the political force and effectiveness of people … supporting your side of the case,” the chief justice told a lawyer challenging the constitutionality of a ban on benefits to same-sex spouses under the federal Defense of Marriage Act.
The lawyer, Roberta Kaplan, rejected the contention that homosexuals in America are politically powerful.
“Really?” Chief Justice Roberts replied. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
The comment was a reference to a number of members of Congress who announced their support of same-sex marriage on the eve of arguments at the high court.
Ms. Kaplan stood her ground. “No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” she said.