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Prop. 8, the trial that should be seen

Opinion

It's more than a legal case; it's a morality play aimed at all of us, and we should get to hear it.

January 15, 2010|By Barry Friedman

Many proponents of same-sex marriage in the gay community opposed the Perry litigation, believing that the suit came too quickly; that public opinion is unsettled. Scopes may be instructive here as well. John Scopes lost and paid a small fine, though even that was overturned on appeal. But the real effect of the trial was to embolden creationists; it potentially set back the widespread teaching of evolution for years. The issue of creationism -- now called "intelligent design" -- was "tried" in Pennsylvania in 2005; it has not gone away.

It's wrong, of course, to think the Supreme Court will "resolve" this issue, any more than it managed to resolve the issues of segregation, abortion, the death penalty or gay rights, for that matter. But what the court ultimately decides (if it decides), and on what basis, will profoundly affect the terms of the debate. If matters of social change are going to be debated in the courts, we all should get to view the process -- and, through our reactions, to participate in it.

Barry Friedman, a constitutional litigator and law professor at New York University School of Law, is the author of "The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution."

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