Will the Court Heed Public Opinion on Gay Marriage?

      Harvard Law School professor Michael Klarman closed his history of the gay marriage movement, From the Closet to the Altar, by speculating about the possible backlash if the Supreme Court ruled in favor of marriage rights for gays and lesbians. Even though legalizing gay marriage seems inevitable, Klarman said, a Supreme Court decision to that effect might trigger a backlash of the sort that that the court suffered when it outlawed school segregation or recognized abortion rights.
      Klarman finished his manuscript a year ago and decided not to try to update it before publication in September. By then, much had changed. Most notably, President Obama had declared his personal support for gay marriage, and the Democratic Party platform included a plank to the same effect.
      In addition, the federal appeals court in Boston became the first appellate-level tribunal to rule the federal Defense of Marriage Act (DOMA) unconstitutional. That law bars federal marriage-related benefits to same-sex couples even if they are legally married in their home states.
      Since September, gay marriage supporters have won at the ballot box for the first time since opponents began putting the issue before voters in the late 1990s. Voters in three states — Maine, Maryland, and Washington — approved referenda on Nov. 4 on gay marriage bills passed by their respective state legislatures. On the same day, Minnesota voters rejected a constitutional amendment to ban marriage for same-sex couples.
      The Supreme Court is set to take on gay marriage for the first time in 40 years in two cases to be argued later this month. The court will consider DOMA in United States v. Windsor on March 27; the day before, the court will hear a challenge to Proposition 8, the gay marriage ban passed by California voters in 2008 by a 4 percent margin (Hollingsworth v. Perry).
      On the eve of those arguments, Klarman thinks the possibility of backlash has receded. As he notes, public opinion has shifted on this issue faster perhaps than on any civil rights issue in U.S. history. Two decades ago, the public was opposed by a two-to-one majority; ten years ago, the gap was still about 10 percent. Today, polls register a 10 percent margin nationwide in favor of recognizing marriage for same-sex couples — and 61 percent in favor in California.
      The shift in public opinion can be seen as well in the outpouring of briefs filed last week in support of gay marriage in the two cases at the Supreme Court. Among a dozen briefs filed urging the justices to strike DOMA down was one on behalf of 278 employers, including many of the country’s biggest corporations. DOMA hurts employers, they say, by forcing them to discriminate against their gay and lesbian employees. Straight workers can add their spouses and children to their health plans, but not gay or lesbian employees.
      In another brief, 212 current members of Congress urge the court to rule DOMA unconstitutional, including several who voted for the law back in 1996. DOMA was “not the result of impartial lawmaking,” the lawmakers say. None of the rationales for the law offered today — saving money, encouraging stable families, helping children — “comes remotely close to justifying it,” the lawmakers say.
      The House’s so-called Bipartisan Legal Advisory Group is defending the law after the Obama administration’s decision two years ago to acknowledge it as unconstitutional. The House leaders voted 3-2 along party lines to step into the case. A supporting brief from Senate Republicans gathered only 10 signatures; 40 Democratic senators signed on to the brief opposing DOMA.
      The United States itself filed briefs supporting gay marriage in both the DOMA and Prop. 8 cases. Admittedly, the administration government took a narrow stance on Prop. 8, challenging the gay marriage ban on the ground that the state had extended marital rights to same-sex couples but not the name itself. That argument would knock down gay marriage bans in seven other states but leave others not directly affected.
      Tellingly, a brief supporting gay marriage bans was joined by 19 states, only half of those with such measures on the books. And more than 100 Republicans, including campaign managers for the GOP’s two most recent presidential nominees, urged the court to recognize marriage rights for same-sex couples.
      The justices do not decide cases, of course, by consulting polls or measuring the respective stacks of friend-of-the-court briefs. But amicus briefs can have an impact. The court cited a pro-affirmative action brief filed by former military officers in its decision to allow use of race in university admissions in 2003. Klarman thinks the gay marriage briefs may have similar impact in the pending cases, especially on the justice seen as having the pivotal vote: Anthony M. Kennedy.
      “Justice Kennedy cares more than anyone about what the backlash is going to be,” Klarman explains, so he is “not oblivious” to shifts in public opinion. Kennedy also cares about his legacy — and the court’s. “It would be very attractive to be on the right side of history,” Klarman says. And it is “pretty clear,” he says, which way history is headed.