We welcome this guest post from NYU political scientist Patrick Egan.
“Half a loaf is better than none,” goes the saying. So let’s call the Supreme Court’s pair of rulings yesterday on same-sex marriage what they really amount to: half a loaf for the marriage equality movement. Yes, U.S. v. Windsor allows the federal government to recognize state-sanctioned same-sex marriages, and it appears that the upshot of Hollingsworth v. Perry will be that gay couples again have the right to marry in California. But full marriage rights will now exist in only a baker’s dozen of the states; most of the remainder explicitly ban same-sex marriages altogether. The federal government is no longer forbidden from recognizing same-sex marriages, but is it required to do so? And what happens to gay couples who marry in one state and move to another?
The fact that Windsor and Perry leave a two-tiered legal regime in place for most gay couples begs an even bigger question: why didn’t the Court simply establish marriage equality as the law of the land? The five justices making up the Court’s majority in Windsor clearly empathize with gay people and attest that gays and lesbians are entitled to Constitutional protection. But when given not just one, but two chances to vastly improve the circumstances of gay couples in states that could take decades to extend marriage rights on their own, why did they punt?
The most likely explanation is that the justices who support marriage equality are haunted by the aftermath of decisions like Roe v. Wade, which struck down abortion laws in 46 states when it was decided in 1973. As shown in the figure below, as the Court deliberated Roe, public opinion trends on abortion (plotted in red) looked awfully similar to recent shifts in attitudes on gay marriage (plotted in blue). Support for legalizing elective abortion (here measured with a question from the National Opinion Research Center about whether abortion should be legal for a pregnant woman who is “married and does not want any more children”) was rising rapidly, particularly among the youngest generations. It was not unreasonable to think at the time that Americans were moving toward a national consensus on an issue framed as a matter of personal liberty and gender equality.
Of course, that didn’t happen. Roe helped catalyze the pro-life movement and moved the abortion debate to the front-and-center of the American political stage. As shown on the graph, support for legal abortion plateaued at exactly where it was in the Roe era, and Americans have been deeply divided on the issue for four decades since. (For more on Roe and opinion trends on abortion, see the excellent chapter contributed by Samantha Luks and Michael Salamone to Public Opinion and Constitutional Controversy, a book I co-edited with Nathaniel Persily and Jack Citrin.)
There is hard evidence that at least one of the five justices in the Windsor majority—Justice Ruth Bader Ginsburg—feels exactly this way about Roe. A proponent of abortion rights, Ginsburg recently stated publicly that Roe “seemed to have stopped the momentum that was on the side of change.” A narrower decision—perhaps applying only to the Texas law before the Court—would have preserved this momentum, said Ginsburg. Narrow decisions are exactly what the Supreme Court delivered yesterday, even though legal experts said it had many options at its disposal, including a sweeping ruling striking down all state marriage bans on equal protection grounds.
But might abortion rights and Roe be the wrong analogy to the controversy over gay marriage? What if instead the proper parallel is interracial marriage—and Loving v. Virginia, the landmark 1967 Supreme Court ruling this right throughout the nation? Stanford Law School’s Jane Schacter has noted several similarities between the trajectories of the two issues, including the fact that bans on interracial marriage were being struck down by state high courts in the decades before the issue reached the Court.
The Supreme Court’s ruling in Loving was anything but narrow: it struck down miscegenation laws still on the books in 17 states in 1967. And as shown in the figure, interracial marriage was anything but popular: only a minority of Americans supported legalizing interracial marriage when Loving was issued—and an even smaller share “approved” of such marriages. Nevertheless, public opinion continued to march steadily upward after Loving toward the near-universal levels of acceptance where it stands today. (In fact, the consensus is so strong that the biennial General Social Survey ceased asking its question about interracial marriage in 2002.)
If interracial marriage is the correct analogy to gay marriage, then justices who favor marriage equality have little to fear from issuing a sweeping ruling. By contrast, if abortion is the proper parallel, then the careful path pursued by the Windsor majority is the right one. In my next post, I’ll argue why the former is much more likely than the latter—and thus why in future rulings on gay rights and marriage equality, the Supreme Court can afford to be more bold than it has thus far.