More on the California Same Sex Marriage Decision

Andrew Sullivan has a large number of excellent posts on yesterday's decision of the California Supreme Court decision on same sex marriage. Two posts, both on public opinion, merit special attention.


First, for historical perspective, he notes that when the California Supreme Court decided that bans on inter-racial marriage were unconstitutional in Perez v. Sharp, public opinion was decidedly against such marriages:

The California court cited the 1948 Perez v Sharp anti-miscegenation law ruling prominently in its decision today. If you believe that courts should have no role in opposing public opinion in areas of social policy, then the polls at the time make for interesting reading. Ten years after the 1948 ruling, Gallup fund that 94 percent of white Americans opposed inter-racial marriage. As late as 1967, when Loving vs Virginia was decided, a majority opposed it. That remained the case through the 1970s. In fact, the Perez v Sharp ruling was fifty years ahead of public opinion.

Second, he notes that polling suggests that there has been a fairly sharp increase in support for same sex marriages since the issue was last on the ballot in California:

The Field Poll's last measurement was in 2007:

The Field poll questions have remained the same during the six surveys analyzed here. In 1985, only 30% of those polled supported same sex marriage. This increased to 38% in 1997, and the average for surveys in 2003-2006 showed support by 43%.
While only 25% of those born before 1940 are in support, that number has grown by 5% over these years. Those born in the 1940's are supportive at 40%, also a gain of 5%. Similar 7 and 8% increases are found for those born in the 1950's and 1960's, reaching above the 40% threshold. Those born in the 1970's and 1980's are in support by 51% and 58%.

There is no question what the future will be like. The question is whether the court has catalyzed it. The good news is that the Obama candidacy will doubtless increase the number of younger voters in California; the bad news for marriage equality is that will increase the number of African-American voters. Maybe the court's invocation of the anti-miscegenation precedent will help. But we have a big task on our hands - a $20 million minimum commitment. The prize is immeasurable: the establishment of equality in the most populous state of the union.

Read the posts here and here.

My state, Arizona, is the only state in the nation to reject a proposed constitutional amendment to ban same sex marriage. I was counsel for the committee opposing this amendment. The initiative was defeated by focusing on its impact on domestic partner benefits for all unmarried couples. All of the couples in the advertisements were heterosexual. The Committee was criticized strongly by many for not focusing on the issue of single sex marriage, but the strategy worked: we prevailed at the polls. What is interesting is that despite the fact that the Committee avoided the issue of same sex marriage, some polling suggests that Arizonans were more favorable toward single sex marriage than they were before the campaign.

Sadly, perhaps largely due to the decision yesterday, this issue will again be on the ballot in Arizona this year--without the ban on civil unions and domestic partner benefits that allowed us to focus on domestic partner benefits. It will be interesting to see if the change in attitude has been strong enough to defeat this new measure.