Marriage and the court of public opinion

Posted by Brian Powell on

"In 1948, the idea of interracial marriage in the United States was almost unimaginable. The few polls on this topic at the time showed that Americans were nearly unanimous in their disapproval of it.

"There is little evidence that Californians felt any different. Yet that year saw the legalization of interracial marriage in California — not because voters approved it or because legislators supported it but because California's courts ruled that banning it violated the U.S. Constitution.

"In Perez vs. Sharp, the California Supreme Court ushered in a change that feels absolutely normal today. But at the time, the decision was unpopular. Nevertheless, it was soon followed by legal actions in more than a dozen states that ultimately rejected laws prohibiting interracial marriage.

"Eventually — nearly 20 years later — the U.S. Supreme Court also refused to bow to public opinion and, in its landmark Loving vs. Virginia decision, invalidated all remaining race-based marriage laws, most of them in Southern states. As in California, the ruling preceded public sentiment. Even in 1967, when the court issued its decision, only one-fifth of Americans approved of interracial marriage. Yet public opinion soon changed, in large part as a result of the court decision.

"... On Tuesday, the U.S. 9th Circuit Court of Appeals will hear Perry vs. Schwarzenegger. As has been widely reported and debated, this time the question of marriage equality is whether same-sex couples should be allowed to marry.

"In the next few days, the legal battle over the constitutionality of Proposition 8, which restricted the definition of marriage to a legal union between a man and a woman, will be revisited. Californians narrowly passed this proposition in 2008. But a few months ago, a federal judge struck down the ban on the freedom to marry as unconstitutional. Arguments for and against sustaining this judicial decision will be made."

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