Here at the Monkey Cage, I’ve attempted to put the Supreme Court’s consideration of same-sex marriage rights into perspective by comparing public opinion on the issue to two other social controversies addressed by the Court in landmark decisions in the past: interracial marriage (in Loving v. Virginia, 1967) and abortion rights (Roe v. Wade, 1973). I’ve argued that the trajectory of public opinion on gay marriage — and in particular, substantial generational differences in attitudes on gay rights — make it seem likely that Americans are moving toward a broad national consensus in support for marriage equality (as currently exists for interracial marriage) rather than the continued bitter divide of the kind we see on abortion.
But due to recent developments, the issue of same-sex marriage is now different from that of both interracial marriage and abortion in a critical way. That’s because Americans’ support for gays’ right to marry now — as the Court considers the marriage equality cases currently before it in Obergefell v. Hodges — is substantially higher than it was for interracial marriage in 1967 or abortion rights in 1973.
As displayed in the figure above, a majority (52 percent) of Americans now supports the right of gays and lesbians to legally marry. (Shown are estimates from the Pew Research Center, which has been thoroughly documenting trends in opinion on this issue since 1996 and most recently surveyed Americans on this issue in 2014; most other polls put support even higher.) This was pointedly not true when the Court issued rulings in landmark cases on interracial marriage (an NORC poll in 1968 put support for overturning miscegenation bans at 44 percent) or abortion (support for the legal right to abortion under “elective” circumstances in the 1973 General Social Survey stood at 48 percent).
In short, when the court expanded abortion rights and marriage rights in Loving and Roe, it was issuing classically counter-majoritarian opinions. By contrast, the only way it can do so now is with a decision in Obergefell that fails to find that lesbian and gay couples have a right to marry.