The thing about Supreme Court rulings is that they do not have to follow public opinion, in fact sometime they can lead public opinion. And this is exactly as the Founding Fathers intended. The Founders were actually a bit afraid of unfettered democracy, understanding as they did the appeal of demogogues (read, Donald Trump). They understand that (for example) no matter how many people might vote for it, torture is never right. And that is one of the roles of the Supreme Court.
There is a lot of noise from the Right about the Obergfell case, but it is a battle they are destined to lose, and frankly the longer they go on about it, the more they are going to lose. There was a poll released today that says that 53% of Americans have no problem with the legality of same sex marriage, and this has been fairly stable since the ruling, with other pollsters finding similar results. No before you say, “That is kind of a slim majority,” consider this bit of history.
In 1967 the Supreme Court ruled that laws against interracial marriage were unconstitutional (Loving v Virginia). Makers of those laws used many of the same arguments against interracial marriage that we now hear against same sex marriage (it’s unnatural and against God’s will/plan.) Here is a quote from the trial judge in the case that eventually went to the Supreme Court:
Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
The legal issues were so similar that Loving was cited many times in the Obergfell decision. But here is the thing, public opinion was definitely against the Loving decision, much more so than against same sex marriage. Support for interracial marriage did not reach the majority level until 1994, almost 30 years later! Majority support was already in place for same sex marriage when the decision was issued and remains.
So, Republicans who would like to overturn Obergfell are fighting two trends, Supreme Court precedent and public opinion. They are actually heading down a very dangerous road. Below is a map that shows the support for same sex marriage by state.
The first thing that jumps out at you is that support for same sex marriage is highest in the “Blue” states that tend to vote Democratic in Presidential elections. No surprise there. But let’s look at a few other states. The Republican stronghold of Indiana — 52%, a majority. Arizona — 56%(!). Alaska — 60%! Colorado is actually higher than California!
If the states on this map with majority support for same sex marriage were to be reliably Democratic, we are going to have a string of Democratic presidents. Now, look at the states where support is on the cusp of a majority, at 49% we have Virginia, Nebraska(!), Idaho and Montana. At 48%, Wyoming and Missouri are almost there as well. Within shouting distance are Texas, Utah, Georgia and West Virginia.
If Texas ever again votes for a Democratic presidential candidate, the chances of the Republican party are over for a long time, at least for the White House. This map also shows why the Republicans are the party of low turn out and why they want to restrict voting rights, they simply disagree with a real majority of the American people on many issues.
I presume that Republicans won’t be so stupid as to keep beating a dead horse when public opinion has turned against them, but then again looking at their primaries so far, who knows where they are going.
The Republicans have been looking back at the past, but it seems that maybe the bus is about to leave without them.