Is public opinion on marriage equality ahead of the Supreme Court’s?

Posted by Michael Klarman on

"Courts are almost never at the vanguard of social change. In general, they have required sweeping cultural shifts such as school desegregation only when it was clear that a substantial percentage of Americans supported them. So what does this portend for marriage equality litigation, which is likely to end up before the Supreme Court eventually, especially in light of recent federal court rulings in Boston and San Francisco in favor of the freedom to marry?

"The first marriage equality cases, filed by gay couples in the 1970s, were nearly laughed out of court. But by the time of last week's ruling in support of marriage for same-sex couples, more than 40% of the nation — and an even greater percentage in California — supported it. The question now will be whether that's enough of a cultural shift to influence the Supreme Court's thinking.

... "On issues involving race and sexual orientation, court decisions have pushed in the same direction as deep-rooted economic, political and social forces. The justices who decided Brown understood that the collapse of Jim Crow was inevitable, observing during their deliberations that segregation was 'gradually disappearing' and that it was 'marked for early extinction.' Indeed, Justice Robert Jackson went so far as to observe: 'Whatever we might say today, within a generation [segregation] will be outlawed by decision of this court because of the forces of mortality and replacement, which operate upon it.' Jackson's statement reflected his awareness that, in the 1950s, younger people were much more supportive of racial equality than were their elders.

"Similarly today, people younger than 30 are as much as 40 percentage points more supportive of the freedom to marry than people over 65. One perspicacious statistician recently argued that it will take only another two or three years before a majority of people in a majority of states support marriage equality.

"Present-day perspectives on past judicial decisions shift as public opinion changes. When Brown was decided, Americans were almost evenly divided on whether it was right. Today, well over 90% of the country agrees that state-mandated school segregation is unconstitutional. Since at least 1970, no prospective justice could have been confirmed for the Supreme Court without an unqualified endorsement of Brown. Ultimately, Americans evaluate court decisions according to the justness of the result, not on whether judges showed appropriate deference to legislatures or strayed from precedent and original understanding.

"Few people relish being on the wrong side of history. Justice John Marshall Harlan, the lone dissenter from the court's 1896 decision upholding government-imposed racial segregation of railroads, became a hero during the civil rights era because of his prescient condemnation of state-enforced racial segregation.

"When the freedom to marry issue gets to the Supreme Court, the decision is likely to turn, as do nearly all important constitutional rulings these days, on the views of Justice Anthony M. Kennedy — probably the most powerful justice in the court's history. Kennedy sits squarely in the middle of today's ideologically polarized court. From his written opinions, we know that Kennedy is more supportive of the constitutional rights of gay Americans than are his more conservative colleagues. We also know that he is not oblivious to the judgment of history.

"Although it would be mildly out of character for Kennedy to interpret the Constitution to impose the views of a mere handful of states on the entire nation, by the time a marriage equality case reaches the court, several additional states may be permitting same-sex couples to marry. Moreover, Kennedy can read handwriting on the wall as well as anyone else. What better way is there to win the plaudits of future generations of Americans than to author the Supreme Court opinion eradicating one of the last formal barriers to equal citizenship for gays and lesbians?"

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