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Those Pesky Ideas Whose Time Has Come.

Posted By Cliff Tuttle | May 3, 2015

No. 1,149

Image: silive.com Is the outcome inevitable?

Image: silive.com
Is the outcome inevitable?

The Supreme Court is hearing arguments on same sex marriage, legal arguments that wouldn’t have been given a long shot chance of acceptance not very long ago.

The Wall Street Journal carried an article about the first same sex marriage case to reach the Supreme Court in 1972. That case was dismissed without argument. The WSJ interviewed the law clerk of Justice Harry Blackmon, who wrote a short memorandum to the court in the case.  This lead to a one sentence order, which states that the petition did not present a federal question.  That case, Baker v. Nelson, was for many years cited as the controlling precedent on the subject.

The law clerk, Michael LaFond, who recently retired, expressed sympathy for the cause.  He stated that he knew gay men who worked in his family restaurant business when he was growing up and thought it sad that they had to disguise their secret.  However, regarding the 1972 decision, he stated: “I just don’t think the court was ready at the time to take on the issue.”

Of course, the time when gay marriage passes Supreme Court muster may not yet be at hand.  Commentators who  watch the arguments carefully, state that the Court is treating the matter with caution.  Time Magazine says that the court could duck a definitive decision in many, leaving the final outcome to another day.

One of the great tasks of  the Supreme Court throughout history has been to determine the boundaries of personal rights and freedoms guaranteed by the Constitution and by law.  The principles of natural law and personal morality inform this dialogue, but, as we have seen over the years, do not control it.  Increasingly, a broad spectrum of the American public has expressed a preference for tolerance of individual differences among people and groups.  But the American public does not decide what the Constitution and the law requires. The courts do.


Once again, a hat tip to How Appealing.



CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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