With the progress same-sex marriage has made in the past year -- as court decisions struck down gay-marriage bans across the country -- there's a sense of inevitability among some that the Supreme Court will rule in favor of legalizing same-sex marriage. But as the court began hearing oral arguments in a case Tuesday, it reminded us that nothing is certain.
Justice Anthony Kennedy, believed to be the deciding vote in the case (our Robert Barnes called him the "pivotal" member of the court), made several comments Tuesday that suggest he could have reservations about prohibiting states from banning marriage for same-sex couples.
"The word that keeps coming back to me is 'millennia,'" he said. "This definition [of marriage between two people of the opposite sex] has been with us for millennia," he added, while same-sex marriage has been legal in parts of the U.S. now for just more than a decade.
Kennedy also said there hasn't been enough time to see the effects of same-sex marriage.
"If we're not going to wait, it's only fair to say we're not going to consult the social science," he said.
Of course, Kennedy's questions don't necessarily mean he's going to vote that way. When the court heard arguments on the Affordable Care Act, CNN legal analyst Jeffrey Toobin initially said the law "looks like it's going to be struck down," and many other analysts agreed. The opposite happened. Kennedy and Chief Justice John Roberts have made a habit out of asking tough questions of both sides.
But they're a reminder the court could surprise us, and rather than same-sex marriage becoming legal nationwide, the question could be sent back to the states -- or any number of alternatives -- leading to a variety of outcomes legal experts have floated, from old marriage bans once again becoming law, to another round of litigation.
The decision, after all, rests in the hands of a very limited number of people.
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