It is easy to believe now that in a short period of time same-sex marriage will be legal throughout the United States. The Supreme Court’s decision in United States v. Windsor, striking down the Defense of Marriage Act (DOMA), followed by the recent decision by the federal District Court in Utah, Kitchen v. Herbert, holding that Utah’s prohibitions of same-sex marriage are unconstitutional, may make it seem inevitable that federal courts throughout the country will eliminate all barriers to same-sex marriage. That view, however, puts too much faith in the idea that our courts – particularly the Supreme Court – are governed by logic and precedent. They are not. Admittedly, they are influenced by logic and precedent. We might even say they are constrained by those factors. But they are political institutions. There is no guarantee that they will resist popular sentiment in states where legislators and voters oppose same-sex marriage.
This is a companion discussion topic for the original entry at https://talkingpointsmemo.com/?p=209998