Polls Show Majority Embrace Marriage Equality--Will Judges Agree?

The highly publicized suit in federal court that led to a verdict against anti-gay California ballot initiative Proposition 8 is under appeal, and many expect the case to end up before the Supreme Court. Polls show that a slim majority of Americans already support marriage parity for gay and lesbian families--and the trend is only increasing, with marriage support growing rapidly. But will the justices of the court be swayed by popular opinion on the issue?

The Los Angeles Times examined the question in a May 23 article, noting that the high court's justices have, in the past, made an effort to keep abreast of the political climate in formulating their decisions. Specifically, the article cited Justice Harry Blackmun and Roe v. Wade.

But that example may not be the most hopeful: Although popular opinion was shifting toward reproductive freedoms at the time when Roe v. Wade struck down laws banning abortion, the court's ruling polarized the country--and the issue, far from fading away, has become a political lightning rod.

Even so, marriage equality clearly enjoys greater support from younger Americans, the article noted, and the history of how the abortion issue has played out may not be a guide to the marriage equality debate.

"There have been at least five national polls since last year that have shown majority and growing support for gay marriage rights," the LA Times reported. "In the most recent, a Gallup survey on values and beliefs found that 53% of Americans support the right of gays and lesbians to legally marry.

That 3% majority may not seem like much, but when voters passed Prop. 8 three years ago, it was by an even narrower margin--52%. Moreover, the trends indicate that support is growing rapidly.

"The Gallup poll reported the most significant changes in attitudes among young voters and men, with 70% of those between 18 and 34 in favor, a gain of 16 percentage points since last year, and men 18 to 49 supporting same-sex marriage by 61%, up from 48% last year," added the article.

A May 20 Reuters article noted that the 53% approval rating for marriage equality was a mirror image of poll numbers only a year ago, when 53% said that they did not think that gay and lesbian families should be allowed to marry.

As time passes, even former supporters of anti-gay laws have changed their minds. Members of the military brass who pushed for the anti-gay ban in the armed forces later came to press for the law to be repealed; Bill Clinton, who not only signed "Don't Ask, Don't Tell" into law but also the federal law that denies any federal marriage recognition to gay and lesbian families, now publicly supports marriage equality.

Moreover, as anti-gay laws and policies are set aside, opposition to marriage is fading. Late last year, congress voted to repeal the anti-gay law that prevents openly gay and lesbian troops from serving; earlier this year, the Obama administration announced that it would no longer support the 1996 anti-gay "Defense of Marriage" Act (DOMA) in federal court.

The implication is that support for marriage equality is only going to grow over time--motivated, in part, by more gays and lesbians coming out of the closet, making them a more visible part of the population and helping to destroy stereotypes and the social and political fear that can build up around them.

The media spotlight on Proposition 8 and every aspect of the legal challenge against it--from a defense in court that observers say was unconvincing to legal wrangling over who may step in and defend the measure in court now that state officials have declined to do so, and claims from the anti-gay right that the judge in the federal case should have recused himself because he is gay, a claim that Prop. 8 opponents deride--seemingly has had the effect of generating more support for marriage, rather than convincing people of the necessity of locking same-sex families out of matrimony.

The LA Times noted that polls focused on California and the Western states have recorded an uptick in marriage equality support over the last year. The wall-to-wall coverage of the issue, and of popular sentiment regarding it, has allowed a detailed picture to emerge--one that seems to be changing before the eyes of the electorate and the politicians who theoretically reflect the will of the electorate.

"Now we don't have just a snapshot; we have a movie," said Freedom to Marry leader Evan Wolfson, the LA Times reported. "This creates a climate of encouragement for elected officials and judges to do the right thing under the law."

A lawyer associated with the anti-gay side disputed that the American people are expressing a true desire to see couples of the same gender win the right to marry one another.

"Different polls come to different results all the time on this issue, but when voters are given a chance to vote, they side with traditional marriage despite what the polls say," asserted Andrew Pugno.

That claim might be tested as soon as next year, when voters in Minnesota will decide on the rights of their fellow citizens while at the ballot box. Though marriage equality is illegal there under state law, Minnesota legislators have approved a measure that will put an anti-gay amendment before the voters in 2012.

So far, every state where such a ballot initiative has gone to the voters has seen same-sex families either prevented from gaining the right to marry, or, as was the case with Proposition 8, lose that right after they had secured it. The only exception is Arizona, where voters rejected an amendment out of fear that unmarried heterosexual couples might also be penalized. A second ballot initiative with clearer anti-gay language passed.

Indeed, though support for marriage equality continues to grow, Republicans still resist it, noted the article, with opposition from self-identified GOP members registering at the same rate on the newest Gallup poll.

The chair of the anti-gay National Organization for Marriage, which played a key role in the passage of Proposition 8 at the ballot box in 2008, suggested that the new poll might show a different result if the same questions that the poll put to respondents had been phrased differently.

"Polls are becoming very sensitive to wording, and the wording being used in the media are not predicting accurately what happens at the actual polls when people vote," said Maggie Gallagher.

Moreover, polls do not impress those who work to limit the rights of gay and lesbian families because of their religious convictions.

"There are no polls or any of today's trends or fads that would distract the Alliance Defense Fund from the need to protect children," a spokesperson for the conservative Christian legal group told the LA Times. "We continue to protect marriage, no matter what the polls say."