On Marriage, Following the Election Returns

      Fittingly, it was the Irish American political observer Mr. Dooley who observed more than a century ago that the Supreme Court follows the election returns. If Mr. Dooley is still right, the nine justices considering marriage rights for same-sex couples in the United States must all have read the news of Ireland’s decisive popular vote last week to legalize same-sex marriage in the Emerald Isle.
      In fact, Chief Justice John G. Roberts Jr. has been following the politics of the marriage issue closely. Two years ago, he told the lawyer seeking to invalidate the anti-gay Defense of Marriage Act that she did not need the court’s help to prevail. “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.
      This year, Roberts again signaled a desire to let politics instead of law take care of the issue when the justices heard arguments in March. Speaking to the lawyer seeking to invalidate anti-same sex marriage laws in four states, Roberts said that it was “truly extraordinary . . . how quickly has been the acceptance of your position across broad elements of society.”
      Roberts continued with a curious suggestion that he follows polls, but not necessarily on a daily basis. “I don’t know what the latest public opinion polls show,” Roberts said. But he went on to note the opposite results in statewide voting in Maine over a three-year period: against same-sex marriage in 2009 and in favor in 2012.
       “That sort of quick change has been characteristic of this debate,” Roberts went on. “But if you prevail here, there will be no more debate. I mean, closing the debate can close minds. And it will have a consequence on how this new institution is accepted.
       “People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by courts.”
      Roberts cited no evidence for his supposition of an anti-judicial backlash, but the closest historical parallels suggest he is wrong. The Supreme Court struck down laws banning interracial marriage in 1967; opposition to such laws has steadily increased ever since, according to data cited by political scientist Patrick Egan in The Washington Post’s blog The Monkey Cage.
      Support for a right to elective abortion has remained generally steady since Roe v. Wade (1973), according to Egan’s figures, despite the fierce opposition and complex efforts to restrict the right. And support for same-sex marriage has only increased since the wave of federal court rulings adopting marriage rights for gays and lesbians one state at a time since December 2013. In the most recent poll, Gallup found 60 percent of respondents in favor of allowing same-sex couples to marry, four years after having first passed majority support.
      The results of the Irish referendum could be seen as an argument for letting the political process play out here in the United States. The decade-long campaign for marriage rights slowly changed Irish hearts and minds. At the ballot box on Friday [May 23], the Irish approved a constitutional amendment to allow same-sex marriage with 62 percent of the vote. The victors were exultant, the opponents gracious in defeat.
      The United States has no mechanism for a national referendum, of course. Constitutional amendments are difficult and rare. Take out the first ten, the Bill of Rights, and the other 18 amount to less than one per decade, three of them the product of a bloody Civil War. And there is every indication from opponents in the United States that they will not concede graciously.
      The Supreme Court’s role in enforcing constitutional rights still stirs debate two centuries after Marbury v. Madison (1803). Witness Mike Huckabee’s suggestion on Fox News Sunday [May 25] that the president and Congress are not bound by a Supreme Court decision. “The notion that the Supreme Court comes with a ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government,” Huckabee told Fox anchor Chris Wallace.
      Under the Supreme Court’s normal procedure, the die on same-sex marriage has already been cast. The justices met in conference on April 29, the day after the marathon two-and-a-half hours of argument in Obergefell v. Hodges. Roberts spoke first, followed by the other eight in order of seniority.
      Most handicappers predicted a 5-4 vote with Kennedy, not Roberts, assigning the opinion as the senior justice in the majority. But Margaret Marshall, the former Massachusetts chief justice who authored the first of the state decisions allowing same-sex marriage, forecast a 6-3 or even a 7-2 ruling in favor after having been in the courtroom for the arguments.
      Will the Irish referendum change any votes at One First Street? Perhaps the opinions will give a clue. Perhaps there will be leaks, or perhaps history will have to await the release of the justices’ papers decades from now. But this much is clear. With same-sex marriage recognized in Canada and virtually all of Western Europe, the United States is a conspicuous holdout among major democracies.
      Polls in the United States show what Egan calls “a broad national consensus” in favor of marriage equality. The court can stand in the way or it can follow the election returns.