On Gay Marriage, Times Are Changin’

As gay marriage continues to be a controversial issue in political and legal discourse, a quite drastic trend in public opinion is occurring right before our eyes:  Public support for gay marriage has risen significantly over the past two decades in ways you may not have noticed. Columbia University political scientists Andrew Gelman (also a statistician), Jeffrey Lax, and Justin Phillips have published a compelling report in the New York Times that documents and discusses these trends. Be sure to look at the associated graphics. The article is related to Lax and Phillips’ research, published in the American Political Science Review, on public support and policy responsiveness on gay rights issues at the state level. Here is a summary of the primary findings from the NYT article:

1.  For the first time, a national public opinion poll (by CNN) finds majority support (narrowly) for gay marriage; on average, polls show roughly 45% support.

2.  In 1996, just 25% of the American public supported gay marriage.

3.  “The more important turning points in public opinion, however, may be occurring at the state level, especially if states continue to control who can get married.”

–  In 2004, no state showed majority support for gay marriage.
–  By 2008, three states showed majority support.
–  Today, 17 states show majority support for gay marriage.
–  “Support for same-sex marriage has increased in all states, even in relatively conservative places like Wyoming and Kentucky.”

Gelman, Lax, and Phillips forecast that these trends will continue in the future, as the under-30 population shows majority support for gay marriage across all states. “As new voters come of age, and as their older counterparts exit the voting pool, it’s likely that support will increase, pushing more states over the halfway mark.”

Of course, the times are changing not only in public opinion, but in public and legal policy as well. 5 states now allow gay marriage (IA, CT, MA, NH, and VT). While several states currently have bans on gay marriage, federal district court Judge Vaughn Walker’s declaration of CA’s Prop 8 as unconstitutional means that the courts — ultimately, the U.S. Supreme Court — will decide whether those bans will stand or not. And a federal district court judge in MA has struck down parts of the federal Defense of Marriage Act (DOMA).

All roads in this debate lead to a fundamental question:  What will the Supreme Court do? The Prop 8 case is on a sure path to the Supreme Court. And the Massachusetts District Court decision on DOMA may also end up at the Court (see this post by CoOp contributor Glenn Cohen). While bloggers and legal commentators continue to speculate on what the Supreme Court will do, I actually have little doubt that in a few years, the Supreme Court will strike down Prop 8 (and by implication, other state bans), declare a constitutional right to gay marriage (via the 14th Amendment’s due process and equal protection clauses), and rule that states cannot prevent citizens from getting married on the basis of sexual orientation. First, it is not at all a stretch to think that Justice Kennedy — who will likely write the 5 person majority opinion — will vote as such. His opinion in Lawrence paves the way for such a position (as Justice Scalia emphasized in his dissent), and I think he and the Court majority will apply the logic in the Loving v. VA precedent (prohibiting state bans on interracial marriage) to sexual orientation. That is, marriage is a fundamental right, and, as Judge Walker emphasized, no matter what legal standard you use (rational basis or strict scrutiny), there is no legitimate basis for preventing that right on the basis of sexual orientation. Also, I do not think that Ted Olson would take on a case of this magnitude — particularly one that goes against his usual ideological proclivities (though see his Newsweek article) — unless he knew there was a high likelihood of a payoff awaiting him at the end.

Sometimes it is difficult to assess social and policy change while you’re in the middle of it.  As Gelman, Lax, and Phillips have documented, momentum has been building for gay marriage in the public for a decade, and it is bound to continue building. Policy in the states has begun to follow suit. And ultimately, it is completely conceivable to think that the Supreme Court will complete the circle and declare that marriage is a fundamental constitutional right that cannot be abridged by states on the basis of sexual orientation.

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6 Responses

  1. “And ultimately, it is completely conceivable to think that the Supreme Court will complete the circle and declare that marriage is a fundamental constitutional right that cannot be abridged by states on the basis of sexual orientation.”

    ..and in doing so, would have that decision join Dred Scott and Roe as efforts to once and for all decide an issue for the nation and instead exacerbate the matter.

    Side question: Is marriage a constitutional right, such that it has to be provided by a state? Can a state decide to just get out of the marriage business rather than accept the collective wisdom of 5 Ivy-League educated jurists?

  2. Ken Rhodes says:

    “Side question: Is marriage a constitutional right, such that it has to be provided by a state? Can a state decide to just get out of the marriage business rather than accept the collective wisdom of 5 Ivy-League educated jurists?”

    Wow! What an interesting question! I love it!

    I can’t find anything in my copy of the Constitution that even remotely alludes to that obligation on the part of any government, either Federal or state. I can think of no reason why my state could not simply decide “marriage is a religious institution, and we’re not in the religion business, so we’re outta here.”

    But just think … If my state “decommissions” marriage, then how do I file my taxes? “Non-married, filing jointly?”

  3. Veracitor says:

    “…and rule that states cannot prevent citizens from getting married on the basis of sexual orientation.”

    No State does that now. Most States grant marriages licenses only to opposite-sex couples, some may still require STD tests (I’m not sure), but none of the States asks any questions about sexual orientation.

  4. Lawrence Cunningham says:

    Addressing the oft-posed question of civil marriage as a government sanction, of course government isn’t constitutionally required to provde this service. But if government withdraws from marriage licensing, something pragmatic civilized governments have been involved in since at least the Enlightenment, how would people resolve issues arising from matters like child custody and support, on parental death or incapacitation or otherwise; marital splits and resulting contests over property settlements; death and estate distributions in the absence of a legally valid will; and the like? On those freighted subjects, private contracts and enterprise leave many gaps, inefficiencies, and inequities. State abandonment of the field temptingly avoids facing the challenges posed by political disagreement about the meaning of marriage, but it’s a totally impractical idea.

  5. Ryan says:

    “No State does that now. Most States grant marriages licenses only to opposite-sex couples, some may still require STD tests (I’m not sure), but none of the States asks any questions about sexual orientation.”

    That argument is a red herring. They are implicitly discriminating on the basis of sexual orientation, regardless of whether they ask about it. That’s like saying, there was no one ASKING about the color of your skin at the water fountains, they just had one water fountain for whites and one water fountain for blacks.

    If they are preventing you from equal rights on the manifest result of sexual orientation, then they are discriminating on the basis of sexual orientation.

  6. zamys says:

    why cant people just understand homosexuals should be able to have every right a non-homosexual has how would u feel if u thought the gays shouldn’t have rights then what would u do if your daughter was a lesbian then how would you feel knowing your daughter has no benefits just because she is a lesbian or bi-sexual just think people