Maria Lombardi, ‘15
On Tuesday, March 26, thousands of protestors flocked to the nation’s capital to assemble outside of the Supreme Court as justices heard arguments regarding Proposition 8, California’s ban on same-sex marriage. Demonstrators sported signs such as “I Bet Hell is Fabulous” or “Kids Do Best With a Mom and Dad.” Washington, D.C. will host a politically-charged week, as the Court will also hear arguments regarding DOMA, the Defense of Marriage Act, on Wednesday.
Although the Court most likely will not reach a decision regarding the two cases until June, political analysts are already attempting to predict how each justice will vote. According to CNN’s Supreme Court Producer, Bill Mears, there are five main themes to be learned from the oral arguments that could help foretell the outcome of the case. Foremost among these was what he referred to as buyer’s remorse. Mears asserted that many of the nine justices wondered why they were deciding whether states can or should ban same sex marriage. Justice Anthony Kennedy was vocal in hinting at his displeasure of accepting the case, stating: “I just wonder if the case was properly granted” for review. Washington insiders are also taking cues from Kennedy, considering him the swing vote. Four of the more liberal justices appeared open to the idea that same-sex marriage should be allowed in California—including two of the newest justices, Sonia Sotomayor and Elena Kagan—with the three more conservative justices taking a more “traditional” stance on marriage. Justice Clarence Thomas, who usually does not speak during oral arguments, will most likely agree with the conservatives, based on his prior voting record. The influence that the usually-outspoken Scalia and his more subdued liberal counterparts impart upon Kennedy during the proceedings will be crucial to the future of marriage.
Also important to note is the “flavor” of the courtroom. “The Supreme Court has a distinct aura when big cases are argued,” and when its audience is especially worked up, the justices are more engaged in their questioning. Similarly, the court of public opinion weighs heavily on the justices’ minds. Depending on how they rule, the Court could extend a constitutional right for gays and lesbians to wed in all 50 states, but if they rule in opposition, the gay rights movement would be dealt a major blow. Nate Silver, political analyst for the New York Times, investigates Americans’ acceptance towards the legalization of same-sex marriage using a variety of polls. Of the eight national polls conducted in 2013, an average of 51.0 percent of adults approve of same-sex marriage while 42.5 percent oppose it. These numbers are indicative of a long-term trend, with the number of those opposing same-sex marriage retreating from a whopping 70 percent in 1996 to 42.5 percent today; the increase in support of same-sex marriage has also shifted up from 29 percent to 51.0 percent.
Silver hypothesizes that this trend is consistent with a generational shift, but also notes that more voters have changed their opinion to favor same-sex marriage than those who have done the reverse. Based on this data and individual breakdowns by state, Silver predicts that if the growth in support for same-sex marriage continues at a linear rate, “the steady increase in support is soon likely to outweigh all other factors.” He believes that even if the Supreme Court decision freezes opinion among current voters, support for same-sex marriage would continue to increase based on generational turnover, “probably enough that it would narrowly win a national ballot referendum by 2016.” These findings are significant because they lead one to believe that same-sex marriage supporters will soon constitute a national majority, giving supporters confidence that their numbers will continue to increase regardless of how the Court decides in June.
