Today the Supreme Court is hearing arguments on whether the Constitution allows individual states to decide whether they will allow same sex marriage, or whether every state must allow same sex marriage. Forgive the lengthy quote, but NPR sums up the background of today's arguments in Obergefell v. Hodges at the Supreme Court better than I could:
"While no single narrative explains the shift in public consciousness, it is clear that increasingly, Americans came to believe that, at least in some cases, gay marriage ought to be permitted. The elite reaches of the legal profession began to advocate reform of marriage laws. . . . By the end of the decade, 12 state legislatures would relax their . . . prohibitions . . . . Four other states — three by legislation and one by public referendum —would act by the end of 2014 to eliminate all or nearly all restrictions on gay marriage.
Organized religion responded to these signs of change in different ways. Some denominations supported the cause of change, and liberal members of the clergy formed a network to perform gay marriage ceremonies. Other Protestant denominations sat on the sidelines. The Catholic Church, however, alarmed by the spread of new mores . . . began to focus on marriage. By the decade's end, as forces mobilized in support of liberalizing marriage laws, the Church began to make increasingly visible and organized efforts to block reform — first speaking in religious registers and then shifting to secular and nondenominational grounds for opposing gay marriage. Catholic legal scholars began calling on secular sources of law from which to argue for maintaining traditional marriage. Even as the Church was beginning to organize the right-to-life movement, support for liberalizing marriage was emerging from sources that would fatefully change marriage's social meaning and expression."
OK, I cheated a little with this. This is actually a description of the background to the Roe v. Wade decision in 1973, with "abortion" replaced by variations on "marriage" and a couple of dates changed. Two days after Roe, a New York Times editorial hoped that the Roe decision would "bring to an end the emotional and divisive public argument over what always should have been an intensely private and personal matter." All that had to happen for the argument to end, of course, was for the abortion opponents to conclude that they'd been wrong to oppose abortion.
Nothing like that occurred, of course. Despite the pre-Roe movement in public opinion described above, and the incredibly high barrier to change created by the Roe, the "emotional and divisive public argument" continued. For quite some time--20 years--public opinion as measured by Gallup continued to move against the pro-life position. But current trends continue only until they change. Over the next 20 years up to today, the position that abortion should be legal in every circumstance has declined, while the directly opposing position that abortion should be illegal in every circumstance has increased by roughly the same amount. Even more striking, self-identification as either pro-choice or pro-life has moved from a solid majority identifying as pro-choice versus a 33% minority identifying as pro-life, to equal proportions identifying as pro-choice and pro-life today.
Far from ending the debate, Roe disguised fashionable political preferences as a Constitutional requirement, and froze those fashions in place. The same temptation has returned in Obergefell.
Support for gay marriage has been increasing rapidly. Only a few short years ago, Barack Obama stated he was against gay marriage for religious reasons. Since that statement in 2004, support and opposition to gay marriage have swapped places in the Gallup poll, moving from 55% opposition and 42% support, to 55% support and 42% opposition. Staying just behind the curve, President Obama has also swapped his opposition for support.
Current trends will continue until they change. There was no reason to think that the steady shift towards "pro-choice" had peaked in 1996. But it had. Over the past few years, and despite the constraints imposed by Roe, many states have voted for and implemented a raft of new restrictions on abortion. There's no reason to think that current support for gay marriage is more enduring. There may be reasons to think that it's actually less enduring--of the 37 states currently allowing same sex marriage, more than two thirds are doing so due to judicial decisions, not democratic process.
Whether or not current trends change soon, or far in the future, the Court should not repeat its mistake of 1973. If there really is to be a consensus that gay marriage is a good thing, it will be reflected in state laws. But if there is to be no consensus, the Court should not impose one.
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