Marriage and the Court of Public Opinion

In 1948, the idea of interracial marriage in the United States was almost unimaginable. The few polls on this topic at the time showed that Americans were nearly unanimous in their disapproval of it.

There is little evidence that Californians felt any different. Yet that year saw the legalization of interracial marriage in California — not because voters approved it or because legislators supported it but because California’s courts ruled that banning it violated the U.S. Constitution.

In Perez vs. Sharp, the California Supreme Court ushered in a change that feels absolutely normal today. But at the time, the decision was unpopular. Nevertheless, it was soon followed by legal actions in more than a dozen states that ultimately rejected laws prohibiting interracial marriage.

Eventually — nearly 20 years later — the U.S. Supreme Court also refused to bow to public opinion and, in its landmark Loving vs. Virginia decision, invalidated all remaining race-based marriage laws, most of them in Southern states. As in California, the ruling preceded public sentiment. Even in 1967, when the court issued its decision, only one-fifth of Americans approved of interracial marriage. Yet public opinion soon changed, in large part as a result of the court decision.

It is fitting that the most anticipated present-day court case on marriage equality is again taking place in California. On Monday, the U.S. 9th Circuit Court of Appeals will hear Perry vs. Schwarzenegger. As has been widely reported and debated, this time the question of marriage equality is whether same-sex couples should be allowed to marry.

In the next few days, the legal battle over the constitutionality of Proposition 8, which restricted the definition of marriage to a legal union between a man and a woman, will be revisited. Californians narrowly passed this proposition in 2008. But a few months ago, a federal judge struck down the ban on same-sex marriage as unconstitutional. Arguments for and against sustaining this judicial decision will be made.

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It is too soon to predict what will happen to Proposition 8. Some argue that the courts should simply follow public opinion. After all, as one popular slogan notes, “It’s we the people, not we the courts.” Of course, had the courts followed this principle with regard to interracial marriage, it is hard to tell how long it would have taken to remove anti-miscegenation laws from the books. Remember, after all, that about 40% of the voters in South Carolina and Alabama voted as late as 1998 and 2000, respectively, to keep bans on interracial marriage in their state constitutions, even though the bans cannot be legally enforced.

Opponents of same-sex marriage have warned against equating interracial relationships with same-sex ones. They argue that any comparison between same-sex and interracial relationships is deceptive. I disagree. In 2003, 2006 and this year, I conducted interviews with more than 2,000 Americans on their notions of family, and the surveys revealed an undeniable similarity between current and past opinions regarding same-sex couples and current and past views about interracial couples.

The Americans who most vehemently oppose same-sex marriage today — those with lower levels of education, Southerners, the elderly, the religiously orthodox — fit the profile of the Americans who once most strongly resisted the legalization of interracial marriage. The justifications now used to renounce same-sex marriage — that it is unnatural and ungodly, that children from such unions will be irrevocably harmed, and that such marriages degrade “real” marriage — mirror objections to interracial marriages reflected in earlier survey research.

The one big difference between views on same-sex marriage and interracial marriage is that the opposition to same-sex marriage today is much weaker than the overwhelming opposition to interracial marriage was several decades ago.

It is unclear whether or how public opinion will shape judicial decisions regarding same-sex marriage. Despite claims by opponents of same-sex marriage, the American public is not overwhelmingly against the idea. Most national polls, including the ones conducted by my research team, show that Americans are gravitating toward a more open view of same-sex couples.

Today, poll respondents are almost evenly split over the question of same-sex marriage. In fact, some recent polls, including ours, have found that approval of same-sex marriage in the U.S. has passed the 50% mark.

In other words, regardless of what is decided by the courts about the legality of statutes banning same-sex marriage, Americans have moved and are continuing to move toward accepting it.

In our interviews, we did not simply ask yes-or-no questions; rather, we allowed people to explain their answers more fully. One thing we found was that many people said they were hesitant to count gay couples as “families” because the law did not count them as families. But when they are asked whether a legally married gay couple would count as a family, their hesitation disappeared. They still might be unsure of their feelings about same-sex marriage, but they recognized the power of law.

If same-sex marriage is legalized in California, or in the U.S., our research suggests that more Americans will be willing to count gay couples as families. Should the courts rule in favor of the legalization of same-sex marriage, it seems likely that public opinion will quickly follow.

Brian Powell, a sociologist at Indiana University, is the coauthor of “Counted Out: Same-Sex Relations and Americans’ Definitions of Family.” More about the research and book can be found here.

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