Tomorrow, March 26, 2013, oral arguments in Hollingsworth v Perry, aka Perry v Brown, aka Perry v Schwarzenegger, aka The Proposition 8 Case, will be heard by the Supreme Court's Justices.
More electrons have had their charge sacrificed by more pundits pontificating on this case than any in recent memory; this diary will not attempt to argue the case or discuss standing, heightened scrutiny, or, for that matter, Justice Kennedy and which way he leans.
No, this diary seeks to document the unprecedented rapidity of change in Americans' attitudes towards same sex marriage, where those attitudes stand on the eve of this historic hearing, and how these facts might influence the court.
Let's get straight to it.
(This is a republish of a very similar diary published Friday evening.)
Large numbers of polls have been taken in these last few years on America's opinion on marriage equality. Different polls use slightly different wording, apply slightly different methodologies, and survey different numbers of people. But it is generally acknowledged that the best approach to disentangling all this is to simply average it all up.
Here is a table showing the average of all marriage equality polls I am aware of that sample American adults in the years 2011, and 2012, and 2013.
Year Favor Oppose # of Polls 2011 49.7% 44.6% 11 2012 50.2% 42.8 18 2013 52.6% 41.8% 8
Conclusion: With greater than 95% certainty we can now say that the majority of American adults support marriage equality.
Support for marriage equality has increased by three percent in less than three years, while opposition has decreased by three percent. There is now an eleven percent differential between supporters and opponents, far greater than any margin of error.
Ten years ago, though, it wasn't even close. Here are two illustrative trend graphs of many. All of them paint the same picture, if with different colors and styles. In ten years there has been an almost complete reversal in opinion on marriage equality, from low-forties acceptance and mid fifties opposition, to mid-fifties acceptance and low-forties opposition.
Does it matter? When Loving v Virginia was decided in 1967, declaring marriage a fundamental right not to be legislated against on the basis of race, less than 20% of Americans approved of marriage between blacks and whites. On the other hand, most states permitted interracial marraige; only sixteen specifically prohibited it. In the case of Perry, the reverse situation is the case. The majority of Americans support marriage equality, but only nine states and the District of Columbia have made same-sex marriage legal.
With a majority of America in support, it is this author's opinion that the Supreme Court is unlikely to rule decisively against marriage equality. But it could easily not rule in favor, either!
It could choose to delay a reckoning in a number of ways. First, by declaring that the defendants in the Prop 8 case had no standing to appeal. Or by issuing a narrow ruling applying only to California, affirming the Ninth Circuit Court of Appeals opinion based on Romer, saying that because California once had marriage equality, taking away that right is unconstitutional. It could rule less narrowly but still not decisively on nationwide marriage equality, proclaiming that separate but equal civil unions or domestic partnerships -- as are now law in California and various other states -- are inherently unconstitutional per a Brown v Board of Education take on the matter.
If they do rule narrowly though, the Justices must know that they will only have deferred the issue by two or three of years. Direct challenges in Federal court to denial of marriage to same sex couples are on hold pending the Prop 8 decision in Michigan, Nevada, Hawaii and possibly elsewhere. If/when those cases were to reach the Supreme Court, American opinion is likely to be even more lopsidedly in favor of marriage equality with more than 55% of Americans in favor and less than 40% opposed - and a significantly higher percentage of states having legalized same-sex marriage, and a large percentage of Americans living in states with marriage equality.
We won't know for certain until the end of June how the Supreme Court Justices want to deal with marriage equality. But meanwhile we can speculate. What do you think about how they will rule?
2:48 PM PT: You can find coverage tomorrow at
ScotusBlog., which will also be tweeting
and presumably hundreds and hundreds of tweet sources.
2:48 PM PT: Schedule:
Oral arguments are to begin at 10:00 AM tomnorrow (Tuesday).