The role of public opinion in the Supreme Court decision on gay marriage legality

Public opinion has changed dramatically since Massachusetts first legalized same-sex marriage in 2001. At that time, 57% of Americans opposed same-sex marriage.Today 61% support it. In states where such marriages are legal, support is at 64%. More remarkably, in the 13 states where same-sex marriage remains illegal a strong majority (54%) support it anyway.

This sea change in public opinion is important backdrop for assessing the arguments the Supreme Court recently heard over whether to invalidate state bans on same-sex marriage. (The decision is expected in June).

Such backdrop renders some of the arguments presented before the Court strangely out of place.

Arguing for the defense, for example, John J. Bursch claimed procreation or “binding children to their biological moms and dads” as a primary purpose of marriage (something same-sex marriages presumably cannot accomplish). Justice Ruth Bader Ginsburg asked him how such an argument made sense considering 70 year-olds legally marry persons from whom one would not anticipate procreation.

The 70-year-old daddy argument

Bursch explained that procreation remains a compelling reason to limit marriage to heterosexuals even in this situation, because a 70-year-old male can still procreate. Such an argument seems unlikely to resonate strongly enough to persuade such a large majority of Americans to change their minds.

Furthermore, if the Court rules against the plaintiffs, upholding the rights of Kentucky, Michigan, Ohio and Tennessee to retain their ban, it sets itself boldly against prevailing public sentiment. That decision would undermine one of the key arguments same-sex marriage opponents have made repeatedly.

Opponents have said it’s inappropriate for the Supreme Court to involve itself because ensuring a right to marriage is to function in an activist way against the will of the people.

Both conservative and liberal justices have acknowledged related concerns. Justice Antonin Scalia suggested the issue is not marriage itself “but who should decide the point” while liberal-leaning Stephen G. Bryer prodded the plaintiffs’ lawyers similarly: “Suddenly you want nine people outside the ballot box to require states that don’t want to do it to change what marriage is …?”

The irony here is that it would be a ruling against same-sex marriage, not one for it, that at this point would be the more activist decision, one imposed against the will of the majority, given the polling data.

Not an echo of Roe v. Wade

As added context, polling as far back as 2013 found that 75% of Americans think legalization of same-sex marriage is “inevitable.” There’s little reason to fear, therefore, that a decision in support of same-sex marriage will set off the endlessly rancorous battles that persist more than 40 years after Roe v. Wade (which even Ginsburg has concluded went “too far too fast”). A gay rights rally in 2013 reflect shifting public opinions. REUTERS/Lucy NicholsonREUTERS/Lucy Nicholson

All evidence suggests a decision for same-sex marriage poses no such risk.

But at another level public sentiment is beside the point. At essence the legal question is whether or not marriage is, in fact, a matter of equal protection. If it is, as Solicitor General Donald B. Verrilli, Jr. put it, the gays and lesbians “deserve equal protection of the laws and they deserve it now.” Thus, the argument goes, public opinion on fundamental rights is irrelevant and the Court will have to invalidate the bans.

But if the debate is over the intrinsic nature of a longstanding institution – one the defendants argued to be innately heterosexual – equal access is not the question. If the Court perceives the issue as essentially boiling down to marriage’s nature, it must conclude that mandating inclusion of same-sex couples is a change beyond its reach and allow states to go on treating marriage as they see fit. (One might still wonder, in this case, why federal and state governments thus involve themselves in marriage at all by packaging civic rights and responsibilities into an institution the Court determines exists outside of judicial shaping).

In a month in which police violence against black communities dominates the news cycle, it would be beyond inappropriate to fail to name aloud the historical origins of the same movements for justice and equality ostensibly responsible for bringing to fruition the Court’s historic hearings on April 28.

LGBT communities claim the Stonewall riots of 1969 as the genesis of its collective, activist struggles. Though the racial dimensions are almost never noted in mainstream remembrances of the seminal Stonewall event, many of the rioters were black and Latino gay and transgender people who decided to stand up to longstanding police violence against their communities.

Two key cases that changed public opinion more than actual social and economic conditions

In light of this, sobering questions remain about the actual implications of all of this. Brown v. Board of Education and Loving v. Virginia (two cases often compared to same-sex marriage) accomplished more sea change in public perceptions than realized access to quality education or dramatically improved social and economic conditions for large swaths of the African-American community.

However the court rules, the impact of its decision on the well-being of the most vulnerable among LBGT communities – often the same kind of folks as those who rioted at Stonewall – is the most important ethical measure of the social implications of this case. On that question the verdict is still out.

Jennifer Harvey does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.