SUPREME COURT MARCH 26, 2013
This week, the Supreme Court will hear oral arguments related to two cases about gay rights. There’s plenty of excitement around the hearings: Tom Goldstein of SCOTUSblog called them “the most significant cases these nine Justices have ever considered, and probably that they will ever decide,” while Slate’s Emily Bazelon described them as “the civil rights case[s] of our generation.” But there’s significantly less agreement about the impact a decisive ruling might have on the campaign for same-sex marriage.
A Court ruling supportive of gay marriage could make even more Americans even more supportive.
For all the fervor around the issue, many supporters worry that a blanket declaration of a constitutional right to same-sex marriage would create a backlash, turning Americans against the cause. William N. Eskridge, Jr. and Darren Spedale summarized this sentiment in Slate immediately after advocates filed a lawsuit challenging California’s Proposition 8, arguing that it would be a problem for “federal judges to step in and close off discussion.” Last weekend, The New York Times ran a story about the political legacy of Roe v. Wade that suggested a gay marriage decision could have a similarly polarizing effect.
In fact, there is now a good deal of research on how the public reacts to Court decisions, and the evidence is mostly encouraging for those who favor same-sex marriage. A Court ruling supportive of gay marriage could make even more Americans even more supportive of gay marriage. And while there are real concerns about what opponents of gay marriage might do, these concerns might be less significant than feared.
To understand why, let’s first consider how a Court ruling nationalizing gay marriage would affect people who support gay marriage. In an article published in The New Republic a year ago, my colleague Donald Braman and I reported results of a study we conducted in 2010 in which participants were led to believe that the Court had declared it a national right. Our findings suggested that supporters of gay marriage were not bothered that the Court—as opposed to Congress—had ended the debate: They remained just as likely to support gay marriage as before. Indeed, our findings suggested the Court decision reminded them of how much they cared about the issue, making them more passionate. This is consistent with some of my more recent findings about public reactions to other Court decisions, like last June’s decision upholding Obamacare.
Since polls dating back to 2010 have consistently suggested that most Americans support gay marriage, our study suggests that a positive Court decision would make this majority even more motivated to take to the streets to do something about it. In dark or light blue states, or even in purple states, that greater motivation might in turn create even greater legislative energies not just to protect gay marriage but also to pursue other causes important to the gay rights movement, like employment discrimination legislation.
Let’s now consider how a strong Court decision would affect those who are opposed to gay marriage. At least some research suggests that the Court might be able to convince opponents about the merits of gay marriage, turning them into supporters. The evidence is mixed: Some studies characterize the Court’s power to shape opinion as “potent;” others suggest a more “limited” power. On this particular issue, though, there are reasons to think the Court’s power might be closer to the potent end of the spectrum. Because opinions on gay marriage have proved so malleable, a ruling by a relatively respected institution like the Court might be especially convincing.
It used to be the case that opponents felt much more strongly than supporters. No more.
One potential factor: The role of the conservative establishment. Will right-wing opinion leaders establish a narrative declaring that, say, the ruling is an example of unelected judges upending traditional values? Perhaps. But in the past few months, many leading conservatives have not been making the rounds of newspapers and television programs to argue against gay marriage. Quite the contrary. A Politico story last week reported that the Republican elite widely favors marriage equality. The Republican lawyer who argued for President George W. Bush in Bush v. Gore and later became his Solicitor General, Ted Olson, will be arguing for gay marriage in front of the Court. Leading Republican business and political figures filed an amicus brief before the Court arguing in favor of gay marriage.
Of course, people don’t always follow the lead of the partisan elite—and those elites are hardly unanimous. The most legitimate concern about a pro-gay marriage ruling is not that there will be a majority or even widespread backlash, but that there will be an intense, regionally concentrated backlash motivated by the provocation of the Court’s decision. Because antipathy towards same-sex marriage tends to be geographically concentrated, this could mean that a small number of state governors and legislatures work to undermine the decision. In other words, life might be better in Manhattan or even Michigan, but it could be much worse in Mississippi.
This is a real concern, and one worth considering in greater detail. We know that a Court decision about an issue intensifies opinions about that issue; there is evidence that state court gay marriage decisions have done exactly this. But there is reason to think that the reaction of an intense minority might not be quite so significant. One reason: Just as there has been a shift in preferences about gay marriage over the past two decades, there has also been the shift in the intensity of these preferences. It used to be the case that opponents felt much more strongly than supporters. It was easy to organize state ballot initiatives banning gay marriage because so many opponents of marriage equality were motivated to go door-to-door, solicit signatures, and organize rallies. These days, supporters of gay marriage care more deeply than foes, with one poll indicating that only about one-third of Americans are strongly opposed to gay marriage. There might not be enough strong opponents enough to create the political or social momentum to do something about an unfavorable Court ruling, even in a small number of states.
Moreover, if conservative elites are unwilling to take the lead in opposing gay marriage while the case is before the Court, there’s reason to doubt that many of them would take the lead after a decision is issued. It could be that gay marriage becomes an easier target once the Court is associated with it, but without a drastic change in how conservative elites are behaving, it would be difficult for any motivated citizens to do much.
Of course, the high drama surrounding these cases could well fizzle in the months ahead. Both cases present the Court with opportunities to avoid reaching the most controversial question about the constitutional status of gay marriage, in part because only the Proposition 8 case directly asks the Court whether all states must issue marriage licenses to gay couples.
If there is to be a sweeping decision, the surest way to avoid a public backlash might be for the Court to wait to decide these issues. A recent poll found that 81 percent of those between the ages of 18 to 29 are supportive of gay marriage, so public opinion very quickly could become even more supportive of gay marriage. But for many Americans, waiting any longer for marriage equality means waiting too long. And even if a big decision comes soon, there is reason to think that a significant, national backlash is not likely. If the Court is ready for gay marriage, the country might just be too.
David Fontana is an Associate Professor of Law at George Washington University School of Law.