Public Opinion and the California Gay Marriage Case

In a recent post, co-blogger Orin Kerr cites a poll showing that 61% of Californians now support gay marriage, and considers the implications of this result for the Supreme Court’s upcoming decision on the constitutionality of California’s ban on gay marriage. He predicts that:

If last year’s debate over the popularity of the Affordable Care Act provides any clues, each side will have its preferred lesson. For those who want the Supreme Court to strike down Prop 8, the poll shows that the Supreme Court can invalidate Prop 8 without causing a major backlash because the law has become very unpopular. For fans of judicial restraint, however, the poll shows that the Supreme Court doesn’t need to invalidate Prop 8 because California voters will almost certainly repeal it themselves.

These are not mutually exclusive claims, and both are probably true. Growing public support for gay marriage makes it likely that the Court could weather any backlash created by a decision striking down Proposition 8. On the other hand, it is also likely that a ballot initiative reversing Proposition 8 will pass in California sometime in the next few years if the Court chooses not to strike Prop 8 down.

I would add a few caveats to Orin’s analysis, however. First, any decision on the constitutionality of Proposition 8 is likely to have an impact that goes well beyond California. Thus, national public opinion is relevant, not just California opinion. A n December Gallup poll of national opinion shows 53% supporting gay marriage with 46% opposed. Recent Pew Research Center surveys show an average 48% in favor, with 43% opposed. This is a major change from earlier years, and support for gay marriage is rapidly increasing. At the same time, however, it is not nearly as high as the lopsided majorities that wanted the Supreme Court to strike down the individual health insurance mandate last year. A decision striking down Proposition 8 is likely to face broader opposition than a decision striking down the individual mandate would have. Moreover, many of the social conservatives who oppose gay marriage feel very strongly about the issue, perhaps even more so than hard-core liberal Democrats felt about the mandate.

That said, the Court would likely weather the storm without too much trouble. Its decision would start out with majority public support. In addition, the ranks of gay marriage supporters are rapidly expanding, while opposition is diminishing. Thus, the Court could expect support for a decision striking down Proposition 8 to increase over time.

At the same time, I also don’t think the Court would face a debilitating backlash if it upholds Proposition 8. Right now, only a narrow majority supports gay marriage, and for many of them the issue is not a high political priority. Moreover, if gay marriage continues to gain ground politically, that success may diminish advocates’ anger at the Court for upholding Proposition 8. In the long run, such a decision may be condemned by history if we ultimately come to a near-consensus that gay marriage is right and just. It could be viewed in the same light as the Court’s nineteenth century decision upholding state laws banning interracial marriage or its 1986 ruling upholding anti-sodomy laws.

Be that as it may, the Court could go either way in this case without incurring major political risks, especially if a decision striking down Proposition 8 does not immediately invalidate the laws of all 41 states that currently forbid same-sex marriage. The case will ultimately come down to what the justices genuinely believe about the constitutional issue at stake. That’s as it should be. Except in very rare cases, Supreme Court justices should not base their decisions on their potential popularity or lack therefor. They also should not hesitate to strike down an unconstitutional law merely because they expect the political process to repeal it in the future. As Orin puts it in the comments to his post, “I don’t think judges should pay attention to public opinion polls either way, except insofar as it might be formally relevant to existing doctrine.”

UPDATE: I should note that the survey data on gay marriage is not an exact parallel for last year’s polls on the individual mandate case, because the former don’t directly ask about whether the Court should strike down state laws banning gay marriage, but merely ask about respondents’ policy preferences on the issue. The two are likely to be highly correlated, but not perfectly so.