Eighty-seven percent of constitutional law professors back marriage for same-sex couples, and 7 out of 10 believe the federal Defense of Marriage Act is unconstitutional, but only a slight majority of 54% think the federal Constitution requires states to recognize same-sex marriages. That’s the result of a survey of 485 constitutional law professors that I conducted this summer with the help of my indefatigable and indispensable research assistant, Minnesota 2L Samuel Light. In this post, I want to highlight some of the main results from the survey.
The survey was prompted by a comment from a pro-SSM law professor that the constitutional debate on the issue among scholars was over. According to him, there was no remaining doubt among specialists that recognition of SSM is required by the Constitution. I suspected this claim was too strong. Despite a common criticism, many constitutional law professors pride themselves on being able to separate their policy preferences from their constitutional views. (Whether they succeed in doing so is a different question.) So I wanted to test the hypothesis that the matter of same-sex marriage has been settled by asking professors themselves.
The survey was also prompted by the progress of some major cases challenging anti-SSM laws. One of the cases challenges California’s Prop 8; others take on the Defense of Marriage Act. These cases are teed up to reach the United States Supreme Court in the 2012 Term. (The Court will consider whether to take the Prop 8 case and at least one of the DOMA cases at its September 24 conference.) The cases don’t necessarily call for a comprehensive answer to the question whether there is a constitutional right to same-sex marriage, but that large question will definitely be in the background.
The views of constitutional law professors do not determine outcomes in constitutional cases and probably play no role in the Justices’ conscious thinking about those outcomes. But it isn’t really plausible to believe the Justices are completely unaffected by the views of the nation’s constitutional law specialists. So on the eve of a Term promising some blockbuster decisions on constitutional issues related to gay marriage, it seemed like a good time to take the temperature of the legal academy. Just how widely accepted among experts is the constitutional case for same-sex marriage? Has the constitutional case against same-sex marriage become an exotic remnant of a bygone era, at least among specialists, rather like the argument that Brown v. Board of Education trespassed on the “neutrality” required by the Equal Protection Clause?
We proceeded as follows. Brief surveys were sent by email to the 1,579 teachers listed as Constitutional Law professors in the 2011-12 directory of the Association of American Law Schools. This list relies on self-reporting by law professors who claim to be teachers or specialists in the field. In the email, professors were informed that I was conducting the survey and that they could respond by clicking a link to the actual survey instrument. Respondents were assured that their individual identities would not be disclosed. They were prevented from answering more than once. Of the 1,579 professors queried, 485 responded (a response rate of 30.71%). These included many of the most prominent constitutional law professors in the country.
The survey consisted of four questions, with space for comments after each question. Many of the respondents offered detailed and thoughtful comments about the issues. The questions and answers received were as follows (note: percentages are rounded):
QUESTION 1: “As a policy matter, do you think states should legalize same-sex marriages?”
Yes — 87%
No — 8%
Not sure — 3%
No answer/Other — 2%
QUESTION 2: “As a policy matter, do you support federal recognition of same-sex marriages legalized by the states?”
Yes — 87%
No — 8%
Not sure — 2%
No answer/Other — 2%
QUESTION 3: “Section 3 of the Defense of Marriage Act (DOMA) forbids the federal government to recognize same-sex marriages legalized in the states. As a matter of federal constitutional law, do you believe the federal government may refuse to recognize same-sex marriages legalized in the states?”
Yes (DOMA Section 3 is constitutional) — 16%
No (DOMA Section 3 is unconstitutional) — 69%
Not sure — 11%
No Answer/Other — 3%
QUESTION 4: “As a matter of federal constitutional law, do you believe that states *must* allow same-sex couples to marry?”
Yes — 54%
No — 28%
Not Sure — 13%
No Answer/Other — 5%
Some Findings and Conclusions From the Survey
(1) Not surprisingly, constitutional law professors overwhelmingly support same-sex marriage. Indeed, the 87% figure exceeds even what I expected. (Many among the remaining 13% volunteered that they would support the creation of civil unions or other legal protections for gay couples.) It certainly exceeds the percentage of the American people who support same-sex marriage (about 50%, depending on the poll). Indeed, I cannot think of a demographic group that can match this impressive solidarity in favor of gay marriage – including adults under 30, atheists, those with graduate degrees, and even gays themselves (among LGBT respondents in a recent poll, 85% support same-sex marriage, 12% oppose it, and 3% are unsure). This represents a huge shift toward support for same-sex marriage among constitutional law experts, who just three decades ago would have greeted the idea with bemusement if not disdain.
(2) Opposition to DOMA as a policy matter is just as strong as support for same-sex marriage itself. Even a few gay-marriage opponents among the law professors nevertheless believe that the federal government should honor gay marriages validly recognized by individual states.
(3) Opposition to the constitutionality of DOMA Section 3 is very strong (69%). Only 16% believe it is constitutional. If the debate about DOMA among constitutional specialists is not quite over, it’s almost there. Contrast that with the weaker consensus supporting a constitutional requirement to recognize same-sex marriage itself (#4 below).
(4) A majority (54%) of constitutional law professors believe states are required by the Constitution to recognize the marriages of same-sex couples. About 28% believe the Constitution imposes no such requirement, while about 18% are unsure or decline to answer. Thus, a total of 46% of constitutional law professors either deny or aren’t sure whether the Constitution mandates the legalization of same-sex marriage. I was surprised that support for a constitutional requirement was not stronger. These numbers do not support the claim that the constitutional debate about same-sex marriage among specialists is over. It is still a contested, if fading, issue for constitutional law professors.
From the perspective of the country’s constitutional law teachers, therefore, the pending challenges to DOMA are on a stronger footing than would be a head-on challenge to state marriage laws in toto. However, the survey did not directly ask what constitutional law teachers think about the constitutionality of Prop 8, which could be decided on grounds specific to California.
(5) A sizable number of same-sex marriage supporters among constitutional law professors distinguish their policy preferences from their constitutional views. More than a third of same-sex marriage supporters declined to say that recognition is constitutionally mandated. Of the 421 respondents who answered “Yes” to Question 1, 63% voted yes on Question 4. That is, they believe that same-sex marriage is both a good policy idea and constitutionally required. The remainder voted “No” (17%) or Not sure/Other/No answer (20%) on Question 4. By contrast, not a single respondent who opposed same-sex marriage as a policy matter believed recognition of it was required by the Constitution.
Thus, support for same-sex marriage as policy is a good, if hardly infallible, predictor of support for a constitutional right to it among constitutional law teachers. Opposition to same-sex marriage among constitutional law professors is a flawless predictor of opposition to a constitutional right.
(6) Constitutional law professors at religiously affiliated schools strongly support same-sex marriage (78%), although at a somewhat lower rate than professors at schools unaffiliated with a religion (90%). There was a somewhat larger difference between professors at religious schools and those at unaffiliated schools on the constitutional mandate (Question 4). Sixty-five percent of surveyed professors at secular schools believe SSM is constitutionally required, but only 45% at religiously affiliated law schools believe that (vs. 35% at religiously affiliated schools who believe it is not constitutionally mandated).
(7) There were small differences by geographic location of the law school. Support for SSM as a policy ranged from a low of 83% at Midwestern law schools to a high of 95% at law schools in the Northeast.
(8) Constitutional law professors at the most elite law schools (the top 14) were most likely to support SSM as a policy (95%), but were least likely to believe it is constitutionally required (46%). Professors at third- and fourth-tier schools, by contrast, were least likely to support SSM as a policy matter (still high, at 84%), but were most likely to believe it is constitutionally required (58%).
Possible limitations and qualifications
Two qualifications about the reliability of the findings come to mind. One is that although the nearly 31% response rate was quite good, it’s possible that opponents of gay marriage were more reluctant than supporters to give their views. Support for SSM is a strong cultural and political norm in most American law schools among both students and faculty. Opposing same-sex marriage might be considered a professional disadvantage, either for those seeking tenure or for those seeking promotion. (Additionally, some law professors think of themselves as potential federal court nominees and may not want to be seen as taking controversial positions on divisive social and legal issues — although this particular reticence probably cuts both ways since potential nominees endanger their candidacies by offending either side.)
Overall, I doubt the poll overstates support for SSM among constitutional law professors by much. Law professors, especially tenured ones, are a pretty secure, independent, and outspoken lot. Confidentiality was promised, which helped quiet whatever concerns some may have had.
Another possible challenge to the reliability of the results is that some respondents might have been thrown off by some ambiguity in the questions. I doubt this played a significant role. One could phrase questions about same-sex marriage and the complex legal issues it raises in numerous ways. In public opinion polls, for example, respondents are more likely to oppose a “ban” on same-sex marriage than they are to oppose “defining” marriage as solely the union of one man and one woman — even though the legal consequence is practically identical. I doubt any such great effect would be obtained from a survey of constitutional law specialists.
A more interesting possibility is that some respondents might have been thrown off by Question 4, which asked whether “as a matter of federal constitutional law” states must recognize same-sex marriages. I deliberately avoided phrasing the issue as whether the respondent believed in a constitutional “right” to same-sex marriage. That language seems to specify a due-process-based fundamental right rather than some other constitutional principle that might require recognition of same-sex marriages. I wanted respondents to answer based on whatever doctrine (including Equal Protection) they believed might support a constitutional requirement to legalize SSM. The survey also did not offer civil unions or domestic partnerships as a policy or constitutional option, although in written comments some professors volunteered their support for such alternatives to marriage. To maximize responses and clarify the issue, I did not want to invite debates over what might be meant by alternative statuses.
Theoretically, one might also quibble over whether the constitutional mandate question (Question 4) called for a normative, predictive, or descriptive response. Is the question raising the normative issue of whether the Constitution should, under the best reading, be understood to require the recognition of same-sex marriages? Is it asking whether the Court should mandate recognition under the best application of its own doctrine and precedents, regardless of whether that doctrine and those precedents are correct? Or is it asking whether the Court will mandate the recognition of same-sex marriage, regardless of whether it should do so? I think the wording of the question (“do you believe...?”) fairly asked respondents to give their own personal, normative views of the constitutional command, rather than to predict what the Court might do. At any rate, if these interpretive problems plagued respondents, they did not say so. Only a handful of them quarreled with any aspect of the wording of any of the questions, a remarkable result by itself.