The Chief Justice Voiced An Absurd Argument Against Marriage Equality


During Tuesday’s Supreme Court oral arguments on marriage equality, Chief Justice John Roberts suggested a novel possibility: that the momentum for public support on the issue would cease if the Court ruled in favor of same-sex couples. Referring to how Maine voters rejected marriage equality in 2009 only to then approve it in 2012, Roberts suggested that the ongoing legislative efforts are fueling that momentum.

“That sort of quick change has been a characteristic of this debate,” he acknowledged, “but if you prevail here, there will be no more debate. I mean, closing of debate can close minds and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it then if it’s imposed on them by the courts.”

There is, however, no precedent from other divisive social issues to suggest that the Supreme Court could actually hurt public opinion. If other rulings serve as any example, it seems the worst outcome is that polling could stagnate, like it has for the issue of abortion, but given marriage equality’s already strong support nationwide, even stagnation wouldn’t be catastrophic to the issue. What seems more likely, however, is that polling on same-sex marriage follows the same course as interracial marriage; once it’s standardized across the country, it becomes even more popular.

As Patrick Egan, Associate Professor of Politics and Public Policy at New York University, points out at the Washington Post, same-sex marriage’s public opinion has already taken a very different course than either abortion or interracial marriage:

CREDIT: Washington Post

When Loving v. Virginia was decided in 1967, only a minority of Americans supported legalizing interracial marriage. Egan’s chart uses numbers from the Pew Research Center, which show a significant jump in the early 1970’s. Gallup’s numbers were much more gradual, not finding majority of support for “marriage between blacks and whites” until the 1990’s. Indeed, support has continued to surge as the question increasingly became a non-issue in the United States, aside from among some southern Republican holdouts.


In the case of interracial marriage, it’s true that Loving ended the debate, but that was only a good thing for the issue. The people who still haven’t changed their minds are people who will probably never change their minds, regardless of what opportunity they have to vote on the issue or debate it in the public square. If anything, the Supreme Court’s decision eliminated the possibility that those people could continue to scare others into sharing their opposition, and a status quo of interracial marriage equality proved that they were wrong about any consequences they posited.

There’s no reason to believe that same-sex marriage won’t play out in much the same way. Roberts doesn’t actually have to worry about the debate ending in the short-term, as conservatives across the country have already been plotting workarounds to avoid recognizing same-sex marriages. This week alone has featured ample stories about how Republicans, conservatives, and Christians will continue to fight same-sex marriage. If the Supreme Court rules that the Constitution requires same-sex couples to have the same access to marriage, as it seems poised to do, then most of these efforts will fizzle quickly under that legal precedent, even if the decision is written somewhat narrowly.

No doubt, the fight will also continue in the context of the “religious freedom” efforts, like the legislation that created a public relations mess for Indiana. Conservatives will look for opportunities to refuse to recognize the legitimacy of same-sex marriages, whether it’s in the form of businesses denying service or government employees refusing to do their jobs — under the guise that they should be “free to believe.” But the Indiana backlash suggested that they will not win public support for these efforts; if anything, their willful intent to discriminate will turn more people away from their positions. And in the meantime, same-sex couples will continue to marry, the visibility — and thus, normalness — of their families only growing.

The fact that support for marriage equality continues to surge in a parallel way to interracial marriage contradicts Roberts’ concern on two fronts. First, it suggests that the Court is behind the times because public support is already so high even though the justices haven’t gotten around to addressing the fundamental question. Secondly, it suggests that Obergefell could have the same impact as Loving, further increasing support as marriage equality becomes the status quo. And, as Egan also pointed out, all of this polling information demonstrates how same-sex marriage is in no way comparable to abortion, which is a very different issue, one with existential questions that might never enjoy consensus.

Of course, it’s possible that Roberts wants the debate to continue because he hopes the polling trend reverses. In Windsor, the case that overturned the Defense of Marriage Act, Roberts was sympathetic to the idea of a uniformity of laws that banned same-sex marriage. In his dissent, he disavowed the notion that banning same-sex marriage could in any way “codify malice” or constitute “bigotry,” perhaps subtly attempting to emphasize that not only was Windsor a ruling based on federalism — his explicit point — but that it was not a ruling based on the merits of allowing same-sex couples to marry. While some are hopeful that Roberts might side with a majority marriage equality ruling based on his comments about sex discrimination, it could just as well be that he hopes the debate can continue among voters so that he never has to weigh taking such a position.