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Same-sex marriage and “perk” time

Most legal experts tracking the same-sex marriage lawsuit in Utah have opined that the U.S. Supreme Court didn’t expect — and doesn’t want — to tackle the issue again so quickly after its rulings this summer in the Proposition 8 and DOMA cases.

As Stephen Wermiel, a law professor at American University in Washington, D.C., told me, the "underlying problem here is we know the Supreme Court says the Constitution doesn’t let you discriminate on the basis of race, that there can never be a valid reason for discriminating between groups of people. But the court hasn’t quite figured out where sexual orientation fits" in that puzzle.

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Wermiel then added, "What’s missing is the field of same-sex discrimination has had several powerful Supreme Court decisions, but it hasn’t had the great equalizer of Brown v. Board of Education yet."

He says Justice Anthony Kennedy has been the "purveyor of the view that up to this point, the differences in the treatment of gay people have been irrational."

Kennedy drew that conclusion in a Colorado case (Romer) that dealt with a discrimination ordinance, as well as in the Texas sodomy lawsuit (Lawrence) that dealt with private, intimate behavior, Wermiel said.

"It will ultimately come down to whether Justice Kennedy believes the case has been made that treating gay people differently in marriage is also irrational," Wermiel said. And, "It will be important for him to see in the states a trend in recognizing same-sex marriage."

Since June, when the Supreme Court issued its decisions, the number of states that recognize same-sex marriage has grown from nine to 17, plus the District of Columbia.

During oral arguments in the Proposition 8 case on March 26, Justice Samuel Alito observed that the parties in the case "want us to step in and render a decision based on an assessment of the effects of this instititution [same-sex marriage] which is newer than cell phones or the Internet? We do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?"

Justice Sonia Sotomayor later made a comment that highlighted the court’s inclination to let the issue foment at the state level a bit longer.

"If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?" she asked. "We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954. And now we are only talking about, at most, four years."

But here comes Utah, with a case that — after the 10th Circuit Court of Appeals reaches a decision on the state’s ban on same-sex marriage ­— could reach the court by next fall. Will the issue be perfectly perked by then?

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