FEATURE
VANDERBILT POLITICAL REVIEW
The People’s Court?
Gay marriage and public opinion
by ALAK MEHTA ‘16
n October 10, 1972, the U.S.
Supreme Court ruled on a mandatory appeal (Baker v. Nelson)
challenging the constitutionality of a
state law that limited marriage to opposite-sex couples. It unanimously issued a single-sentence decision: “This
appeal is dismissed for want of a substantial federal question.” On June 26,
2015, the U.S. Supreme Court ruled in
a 5-4 decision (Obergefell v. Hodges)
that the Constitution guarantees a right
to same-sex marriage. Barring one unrelated amendment, the Constitution
has not changed in the last four decades. This radical shift in the Supreme
Court’s opinion can only be explained
by the changing tides of public opinion.
According to orthodox political
thought, shifts in public opinion are
manifested only in the legislative and
O
so too has the Supreme Court’s interpretation of the Constitution.
The Supreme Court codified this
principle as it pertains to the Eighth
Amendment in its 1958 Trop v. Dulles
ruling: “The Amendment must draw its
meaning from the evolving standards
of decency that mark the progress of
a maturing society.” This statement
clearly implied that the Court should
take public opinion into account in its
interpretation of the Eighth Amendment. In 1972, when public support of
the death penalty for murder was at 50
percent, the Supreme Court effectively
banned capital punishment in Furman
v. Georgia. By 1976, public support
for the death penalty for murder had
moved to 66 percent, the same year that
the high court ended the ban on capital punishment in Gregg v. Georgia.
gressed significantly during this period.
According to Gallup, 27 percent of
Americans were in support of samesex marriage legalization in 1996, the
first year the survey was conducted.
Less than twenty years later, this figure
now stands at an astounding 60 percent.
Surprisingly, there was a legal victory
for gay marriage in the United States
in 1996. The Hawaii Supreme Court
first ruled in 1993 that the same-sex
marriage ban in the state violated the
Equal Protection Clause of the Hawaii
Constitution and would thus have to be
justified by the state under strict scrutiny. In 1996, the Hawaii Supreme Court
ruled that the state had not established
any compelling interest for its samesex marriage ban, thus legalizing gay
marriage statewide (Baehr v. Miike).
However, the victory was short-lived.
As much as Americans like to view the Supreme Court as the unchanging
voice of a timeless document, it is inexorably influenced by public
opinion, particularly on questions of civil rights and liberties
executive branches of government. As
the public’s view on an issue changes,
citizens choose to elect lawmakers and
presidents in support of that new view.
In theory, public opinion is not supposed to affect an independent judiciary. However, this is not always the
case in practice. As much as Americans like to view the Supreme Court
as the unchanging voice of a timeless document, it is inexorably influenced by public opinion, particularly
on questions of civil rights and liberties. As social mores have changed,
20
The justices also appeared to take
heed of public opinion in its landmark Brown v. Board of Education
ruling, which mandated school integration. In 1942, according to a National Opinion Research Center poll,
30 percent of white Americans were
in support of school integration. By
1956, this figure was at just under 50
percent. Unfortunately, the survey
was not conducted between 1942 and
the 1954 Brown v. Board ruling, but
it is reasonable to assume that public opinion on school integration pro-
Shortly after this decision, in 1998,
an overwhelming majority of Hawaiian citizens voted for a constitutional
amendment allowing the state legislature “the power to reserve marriage to
opposite-sex couples.” In September
1996, just before the Hawaii Supreme
Court’s final decision, the U.S. Congress passed the Defense of Marriage
Act, which defined marriage as the
union of one man and one woman for
federal purposes. The quick legislative responses to the Baehr case demonstrate a truth of the “weakest of the