Does The Supreme Court Follow Marriage Polls?

Another day, another poll showing solid support for marriage equality. This time it’s a poll that shows nearly six in 10 Californians now favor same-sex marriage. Yes, those same folks who brought us Proposition 8 are now ready to throw the rice at our weddings.  Even seniors, who once opposed marriage equality by a 19-point margin are now evenly split.

The poll, from USC Dornsife/Los Angeles Times, is just the latest in a series that shows public support for marriage equality keeps rising, to the point that even its opponents realize it is inevitable. But the real question is, does the Supreme Court follow public opinion or not? Purists would say, absolutely not. But faced with a controversial opinion, the Justices may take comfort in knowing that the majority of the public isn’t going to blow its collective gasket if they strike down DOMA and Prop. 8.

The polls would also suggest that the Justices may say marriage is a matter for the states and not a right for everyone. After all, polls in the South put support for marriage equality in a range that looks like winter temperatures.

One way or another, public opinion has to count. It did in the past, to our detriment. It was public opinion on homosexuality that led the court in 1986 to uphold criminalization of gay sex because to do to otherwise would be to “cast aside millennia of moral teaching.”  Antonin “Bring Back the 18th Century” Scalia made public opinion an explicit part of his dissent in the case that ultimately overturned that decision. “So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream’; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal,” Scalia fumed.

We’ll know soon enough whether the Court is part of the tide of history or is the new King Canute (only not so self-aware). But every day it becomes clearer that the public has the Court’s back on marriage equality. The question is, does it have ours?

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  • Ottoman

    In 1967 when SCOTUS ruled in Loving, 70% of Americans were still against interracial marriage.

  • miagoodguy

    Let’s hope the Supreme Court doesn’t follow polls. They should not be making rulings based on public opinion. They should be making rulings based on the law.

  • petensfo

    They know that gay Americans should have the right to protections under law for their relationships, as well as access to the same benefits & advantages that other spouses, kids and surviving spouses enjoy… now we wait to see if they have the courage to actually uphold the freedoms that this nation espouses.

    Imagining that a state by state solution could be the answer is just ridiculous. It ain’t ever gonna happen in places like Mississippi, so how do we really tell people living there, too bad, I guess you better move!

    If they don’t deliver a national decision, they’ll be mocked for decades… and rightfully so.

  • Elloreigh

    No, the Court isn’t going to pay attention to polls. Their job is to interpret the law.

    They will therefore look to the law to understand where public opinion is, as expressed through the law.

    Here’s what they’re going to see: 30 states with amendments banning recognition of same-sex marriage, enacted by voters, speaking through the power of the ballot box.

    This Court isn’t going to do anything that ‘prematurely’ shifts the balance. We are in a very different place legally regarding marriage from where the laws stood when the Loving v. Virginia decision was issued, or from where sodomy laws stood when Lawrence v. Texas was decided.

    Don’t get your hopes up, because you will almost certainly be bitterly disappointed by the rulings that are soon to be made.

  • Joetx

    @Ottoman: The Roberts Court is nothing like the Warren Court, the latter of which helped pull this country’s head out of its ass, only to have the head reinserted by the Rehnquist Court.

    Since the end of the Warren Court, SCOTUS had shied away from being so-called “activist judges,” unless the cases involve giving more rights to corporate “persons.”

  • Ottoman

    @Joetx: Citizens United is as “activist” as you can get.

    The question was does the Supreme Court follow marriage polls. And they even brought up Bowers in this article which was from before Roberts’ time–so we’re not just talking today’s SCOTUS. As for the Warren Court, 25 states had removed their interracial marriage bans by the time of the Loving decision and 9 never had them. Plus the Civil Rights Act happened in the middle of the case. Its not like SCOTUS was being “activist” in Loving, their decision just didn’t match what the general public polled on the matter.

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