The Supreme Court’s Gay Marriage Rulings Didn’t Trample the People’s Will. The Court Upheld It.

How you look at things.
June 26 2013 6:49 PM

Anti-Gay Is Yesterday

Conservatives say the Supreme Court trampled the people’s will on gay marriage. But the people’s will has changed.

U.S. Representative Michele Bachmann addresses the American Conservative Union's annual Conservative Political Action Conference in Washington, February 9, 2012.
Rep. Michele Bachmann, R-Minn., addressing the Conservative Political Action Conference, Feb. 9, 2012.

Photo by Jonathan Ernst/Reuters

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Once again, the Supreme Court has infuriated conservatives. They say the court’s decisions in United States v. Windsor and Hollingsworth v. Perry—voiding part of the federal Defense of Marriage Act and disqualifying the petitioners who sought to reinstate California’s ban on gay marriage—override and disrespect the will of the people.* But the will of the people isn’t what it used to be. In states where voters once passed ballot measures against same-sex marriage, they now support it. The country as a whole supports it. The court, in striking down what voters believed 10 or 20 years ago, is upholding what voters believe today.

Shortly after the court’s opinions were released, House Republicans held a press conference to denounce the rulings. They argued that marriage policy should be made by “elected representatives instead of unelected judges.” The problem is that in this case, California’s elected officials—its governor and attorney general—refused to defend the state’s ban, which voters approved in a 2008 referendum. At the press conference, Rep. Doug LaMalfa of California decried this treachery. He said voters lose faith in democracy when they’re abandoned by “their elected officials, like an attorney general in California that refused, because of politics, to defend what the people had done.”

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That’s an odd complaint. When elected officials play politics, they generally comply with the people’s will. And that’s what happened in California. In 2008, as the National Organization for Marriage notes, “Proposition 8 was passed with over 52% of the vote.” But in the most recent Los Angeles Times poll, taken four weeks ago, Californians affirmed, 58 to 36 percent, that “same-sex couples should be allowed to become legally married.” The state’s leaders have abandoned what Californians thought five years ago to support what Californians think today.

Another speaker at the Republican press conference, Rep. Tim Walberg of Michigan, accused the court of “taking away the voice of the people.” He boasted that “in my state, we have clearly defined marriage to be that relationship between a man and woman.” That’s true: In 2004, 59 percent of Michigan residents who cast ballots on a proposal to forbid gay marriage voted for the ban. But a campaign is now underway to repeal the ban, and in the most recent Michigan poll, 57 percent of voters said they support gay marriage. Fifty-four percent said they’d like to replace the ban with an amendment authorizing same-sex marriage.

Rep. Michele Bachmann, R-Minn., declared at the press conference that “the people are more important than the Supreme Court.” She said the court “undercut the people’s representatives. When they [Congress] voted on the Defense of Marriage Act in the first place, the people were duly represented. They represented the will of their constituencies.” That was true in 1996, when DOMA passed. A decade later, when Bachmann, as a state senator, led the fight in Minnesota for a state constitutional amendment to ban gay marriage, she could still claim to represent the people: 54 percent of Minnesotans opposed legalizing same-sex marriage, while only 29 percent favored it. But last fall, by 51 to 47 percent, Minnesotans voted down a ballot measure to define marriage as exclusively heterosexual. A month ago, the new Democratic-controlled legislature legalized gay marriage. Today, a tentative plurality of Minnesotans—46 to 44 percent—supports that decision. That’s an eight-point increase in support since the same question was asked in February.

What’s happening in California, Michigan, and Minnesota is happening everywhere. “Thirty-eight states have affirmed the belief of their citizens that marriage exists between a man and a woman,” Rep. Vicky Hartzler of Missouri pointed out at the press conference. Her reliance on the past tense was telling. According to a report issued two months ago by UCLA’s Williams Institute, “In the last eight years, every state has increased in its support for marriage for same-sex couples with an average increase of 13.6%. If present public opinion trends continue, another 8 states will be above 50% support by the end of 2014.” Based on the average rate of increase in support for gay marriage—about 1.5 percentage points per year—Nate Silver projects that by 2016, support will exceed 50 percent in 32 states. By 2020, all but six states will have crossed that threshold, and in all but two, support will exceed 48 percent.

The National Organization for Marriage also uses the past tense. “The vast majority of American voters have expressed with their votes their desire to maintain marriage as the union of one man and one woman,” it argues. “That decision should be respected and left undisturbed." But that old consensus has already been disturbed by the people themselves. In fact, they’ve trashed it. In last fall’s state ballot measures, they voted 4-0 for gay marriage. Every national survey shows the same trend. In 1996, Gallup found that Americans opposed recognizing same-sex marriages, 68 to 27 percent. By 2004, the gap had narrowed to 55-42. Today, it has turned in favor of same-sex marriage, 53 to 45. In 2003, the Pew Research Center found that Americans opposed allowing gays to marry legally, 59 to 32 percent. Today, they favor legalization, 50 to 43 percent. In 2007, only 40 percent of Americans in a CNN poll said gay marriages should “be recognized by the law as valid, with the same rights as traditional marriages.” Today that number has risen to 55 percent. A year ago, in a CBS/New York Times poll, Americans opposed the legality of same-sex marriage, 51 to 42 percent. Now they support it, 51 to 44 percent.

As the people have changed, so have their elected representatives. The Alliance Defending Freedom, a conservative legal institute involved in the Supreme Court cases, protests that “DOMA was hardly controversial at the time it was passed: far from creating a partisan political divide, DOMA united Democrats and Republicans—passing by a bipartisan 84 percent of Congress (85-14 in the Senate, 342-67 in the House).” Again, note the past tense. Today, the Human Rights Campaign lists 54 senators and 184 House members as supporters of same-sex marriage.

Cheer up, conservatives. The court, at long last, has done what the people want. Unelected judges are no longer the nosy outsiders defying the country’s values. You are.

Correction, June 27, 2013: This article originally misidentified the the litigants who sought to reinstate California’s ban on gay marriage. These litigants were not the plaintiffs, they were the petitioners. (Return to the corrected sentence.)

Read more from Slate’s coverage of gay marriage.

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