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?