Public opinion and the Supreme Court

The United States Supreme Court has spent its second day hearing argument about same-sex marriage, this time specifically on the constitutionality of the Defense of Marriage Act (DOMA), passed under the Clinton administration in 1996 but now repudiated by the Obama administration and defended by congressional Republicans.

Observers thought that the course of discussion suggested there would be a majority on the court for finding DOMA unconstitutional. Unlike the case of Hollingsworth v. Perry, argued on Tuesday, this does not open up the possibility of legalising same-sex marriage throughout the country, but it would oblige the federal government (and perhaps other states as well, depending on how far the court goes) to recognise same-sex marriages performed in jurisdictions where it is legal.

(The official transcript of Tuesday’s oral argument is here, and there’s a hilarious abridged version here.)

I mentioned last week the way that same-sex marriage – unlike, say, capital punishment – has made steady if slow progress with public opinion. This week, Nate Silver has looked more closely at recent changes on that score, and he finds that since about 2004 support for same-sex marriage has risen in a remarkably linear fashion: “a steady gain in support for same-sex marriage rather than there having been any one inflection point.”

Silver constructs a model for predicting the progress of the trend in different states, which shows that while in 2008 only eight states would have voted to allow same-sex marriage, by 2020 there would be majority support in all but six states (all of them, not surprisingly, in the deep south) and the national average would be above 60%.

Any number of things, of course, could change the current trend, but at present it seems just as likely to accelerate as to go into reverse. As Silver concludes:

But one no longer needs to make optimistic assumptions to conclude that same-sex marriage supporters will probably soon constitute a national majority. Instead, it’s the steadiness of the trend that makes same-sex marriage virtually unique among all major public policy issues …

Whether the shift in public opinion will carry weight with the Supreme Court is another question. No doubt all the justices would deny being guided by opinion polls, but they would be less than human if they did not have some regard to how their decision will be received by the public. And one doesn’t have to be a mad relativist to think that the meaning of constitutional provisions must to some extent change over time with changes in the social context.

Mr Dooley (voiced by humorist Finley Peter Dunne) famously said that “no matter whether the constitution follows the flag or not, the supreme court follows the election returns,” and while that may be unduly cynical, no doubt there’s a degree of truth to it. If the justices do decide to open the door to same-sex marriage a little wider, they can be reasonably confident that the tide of public opinion is on their side.