THE PARADOX OF POLITICAL POWER: SAME-SEX MARRIAGE AND THE SUPREME COURT

Abstract

I wish to discuss the issue of same-sex marriage, and more specifically the case of Hollingsworth v. Perry , a federal challenge to a state restriction on marriage on appeal to the United States Supreme Court.  Perry ’s development has served at least one function of our multi-tiered judicial system, which is to generate several options for the Court. I first review five possibilities, which range from a holding that same-sex marriage is constitutionally required in no states to a holding that same-sex marriage is constitutionally required in all fifty. I then turn to the question of how far I believe the Court should go along this continuum. In particular, I consider how the often-invoked question of the political power of gays and lesbians should affect that determination.