When Iowa voters casted out three state judges that voted in favor of gay marriage rights earlier this month, I was reminded how many times a popular vote has been in favor of gay marriage: zero. Even in liberal Maine, voters struck down a gay marriage law.
Instead, gay marriage victories have usually come from the courts. Legalization of gay marriage in Iowa, Massachusetts, Connecticut, D.C., and New Hampshire all resulted from court decisions. Only in Vermont did gay marriage result from a legislative decision, but that still wasn’t a popular vote.
Now five gay marriage lawsuits threaten to bring the issue to the Supreme Court. The issue is whether a Supreme Court decision in favor of gay marriage would actually decrease public support. Right now, only 41% support letting LGBT people marry. Could this number go down?
The Risk of Backlash
So far court decisions in favor of gay marriage have brought about legislative backlash. Michael Lindenberger explained this week in Time Magazine:
For instance, Hawaii’s ruling pushed Congress to pass the Defense of Marriage Act. The 2003 Goodridge decision legalized gay marriage in Massachusetts but ignited a conservative reaction that saw 11 states vote to amend their constitutions to ban gay marriage — a tide that significantly boosted Republican turnout in critical states in the 2004 elections. . . It happened again just this month when voters tossed out three Iowa Supreme Court justices who had previously ruled in favor of gay marriage.
In fact, when it comes to civil rights, public opinion has historically decreased when courts have ruled against it. Abortion continues to divide the public forty years after the Court ruled in favor of abortion rights in Roe v. Wade.
Or, look at what happened after Furman v. Georgia, when the Court ruled that application of the death penalty had to be consistent to be constitutional. A majority of states passed laws favoring the death penalty, and public support for the death penalty has not decreased in the forty years since.
What Will Happen With Gay Marriage
I think, for whatever reason, gay marriage is different. Last year I talked about two reasons why gay marriage public support is higher in states where marriage laws are challenged.
First, judicial challenges raise public awareness of the issue. When a case reaches the state’s highest court, it puts the topic in everyday conversation, forcing people to take sides. Perhaps people don’t want to appear too conservative on social issues, and once forced to support it in conversation, commit to that support.
Second, court cases may be more likely in states where support for gay marriage has already increased. The more public support for gay marriage increases, the less state laws disallowing it reflect what people want. So, it makes it more likely that people will challenge the laws.
In addition, despite the legislative backlash that has so far followed court decisions in favor of gay marriage, public support has not shown a similar backlash. Instead, the nationwide trend of increasing gay marriage support has remained.
Ultimately, while a Supreme Court decision legalizing gay marriage could decrease public support, I don’t think it will.
[Cross-posted at the Gay Law Report, where I discuss LGBT laws and related news.]
