Courts are almost never at the vanguard of social change. In general, they have required sweeping cultural shifts such as school desegregation only when it was clear that a substantial percentage of Americans supported them. So what does this portend for same-sex marriage litigation, which is likely to end up before the Supreme Court eventually, especially in light of recent federal court rulings in Boston and San Francisco in favor of same-sex marriage?
The first same-sex marriage cases, filed by gay couples in the 1970s, were nearly laughed out of court. But by the time of last week's ruling in support of same-sex marriage, more than 40% of the nation — and an even greater percentage in California — supported it. The question now will be whether that's enough of a cultural shift to influence the Supreme Court's thinking.
Before World War II, the NAACP refused to challenge school segregation, knowing that a case would lose in court because most Americans supported the status quo. But by the time the Supreme Court issued its landmark decision in Brown vs. Board of Education in 1954, half the country agreed with the outcome. Read more:http://www.law.harvard.edu/news/2010/08/18_klarman.html