When Iowa voters casted out three state judges that voted in favor of gay marriage rights earlier this month, I was reminded how many times a popular vote has been in favor of gay marriage: zero. Even in liberal Maine, voters struck down a gay marriage law.
Instead, gay marriage victories have usually come from the courts. Legalization of gay marriage in Iowa, Massachusetts, Connecticut, D.C., and New Hampshire all resulted from court decisions. Only in Vermont did gay marriage result from a legislative decision, but that still wasn’t a popular vote.
Now five gay marriage lawsuits threaten to bring the issue to the Supreme Court. The issue is whether a Supreme Court decision in favor of gay marriage would actually decrease public support. Right now, only 41% support letting LGBT people marry. Could this number go down?
The Risk of Backlash
So far court decisions in favor of gay marriage have brought about legislative backlash. Michael Lindenberger explained this week in Time Magazine:
For instance, Hawaii’s ruling pushed Congress to pass the Defense of Marriage Act. The 2003 Goodridge decision legalized gay marriage in Massachusetts but ignited a conservative reaction that saw 11 states vote to amend their constitutions to ban gay marriage — a tide that significantly boosted Republican turnout in critical states in the 2004 elections. . . It happened again just this month when voters tossed out three Iowa Supreme Court justices who had previously ruled in favor of gay marriage.
In fact, when it comes to civil rights, public opinion has historically decreased when courts have ruled against it. Abortion continues to divide the public forty years after the Court ruled in favor of abortion rights in Roe v. Wade.
Or, look at what happened after Furman v. Georgia, when the Court ruled that application of the death penalty had to be consistent to be constitutional. A majority of states passed laws favoring the death penalty, and public support for the death penalty has not decreased in the forty years since.
What Will Happen With Gay Marriage
I think, for whatever reason, gay marriage is different. Last year I talked about two reasons why gay marriage public support is higher in states where marriage laws are challenged.
First, judicial challenges raise public awareness of the issue. When a case reaches the state’s highest court, it puts the topic in everyday conversation, forcing people to take sides. Perhaps people don’t want to appear too conservative on social issues, and once forced to support it in conversation, commit to that support.
Second, court cases may be more likely in states where support for gay marriage has already increased. The more public support for gay marriage increases, the less state laws disallowing it reflect what people want. So, it makes it more likely that people will challenge the laws.
In addition, despite the legislative backlash that has so far followed court decisions in favor of gay marriage, public support has not shown a similar backlash. Instead, the nationwide trend of increasing gay marriage support has remained.
Ultimately, while a Supreme Court decision legalizing gay marriage could decrease public support, I don’t think it will.
Wrong anology
Once again, we need to look at what happened back in 1967 when the US Supreme Court decided it was going to hear Loving v Virginia.
At the time the case was first heard, the approval rate for interracial marriage was around 20%, which is a much lower percentage than the approval for same-sex marriage is today.
Of course, the society of both eras can’t be fully compared, nor a direct comparison of the court’s makeup, but here’s an attempt.
1) The Loving Court consisted of five Justices named by a Democrat, four by Republicans, and they ruled in favor of the Lovings 9-0. The current Court is just the opposite, five by Republicans and four by Democrats — they have had 9-0 decisions, though, including two so far this session.
2) The Court ruled on the issue of Lawrence v Texas in 2003, which passed easily 6-3, and only Scalia and Thomas are the only ones left on the court who dissented.
So I’m going to go out on a limb and predict that when Perry v. Schwarzenegger reaches the Supreme Court, they’re going to rule on the side of marriage, seeing the parallels between the arguments against interracial and same-sex marriage were both based on religious beliefs, which violate the Establishment Clause of the First Amendment.
It’s hard to say what the Supreme Court would rule. They could also choose to not decide the issue and issue a narrow ruling that only applies to California.
Actually Arizona Proposition 107 won only 48.2% of the vote with 51.8% voting against, making Arizona the first U.S. state to vote down a state marriage amendment. That being said, that state did eventually pass a marriage amendment in 2008.
And let us also not forget Referendum 71 in Washington State. Although not marriage, it was “everything but marriage.”