A history lesson for bitter conservatives: What the Supreme Court's marriage-equality ruling really means

Opponents of same-sex marriage claim that "elites" are foisting their values on America. History says the opposite

Published June 26, 2015 6:49PM (EDT)

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Many people are drawing comparisons between the Supreme Court’s decision declaring a constitutional right to gay marriage with the Court’s 1967 decision invalidating state laws prohibiting interracial marriage.

This is actually not a very apt comparison, as the differences between the two cases are more striking than the similarities. The Supreme Court has nationalized legal gay marriage only in the wake of a groundswell of public support for broadening marriage rights to gay couples. Recent polls indicate that nearly three in five Americans favor legalizing same-sex marriage.

Interestingly, polls show exactly the same percentage of Americans favoring a Supreme Court decision to enact this policy. This is a striking illustration of how little the public cares about arguments regarding the political legitimacy of policies enacted by courts rather than legislatures. (In other words, the set of people who favor gay marriage but don’t think the Supreme Court should impose the policy on states, and the set of people who oppose gay marriage but do think there’s a constitutional right to it, are both empty.)

The contrast with public opinion at the time the Court found a constitutional right to interracial marriage could hardly be more striking.  In 1968, only 20 percent of Americans responded “approve” to the question, “Do you approve or disapprove of marriage between whites and non-whites?” (This overall number masked a huge disparity in attitudes between whites and non-Hispanic blacks, however; 17 percent of whites approved of interracial marriage, while 56% of non-Hispanic blacks did.)

In any case, despite a Supreme Court ruling invalidating laws prohibiting – and indeed criminalizing – interracial marriage, overall public opinion, and especially the opinion of white Americans, was very slow to move toward acceptance. Remarkably, a majority of Americans opposed interracial marriage until the late 1990s, i.e., for an entire generation after the Supreme Court invalidated laws prohibiting it.

Since then, support for interracial marriage has grown at a very rapid rate: In 2013, 87 percent of Americans said they approved of the practice. But the fact remains that, unlike in the case of gay marriage, the Supreme Court’s ruling striking down what were known as anti-miscegenation laws came down in the face of very strong public opinion to the contrary – and that opinion remained the majority view until the latter days of the Clinton administration.

What does this tell us about the politics of gay marriage, relative to those surrounding the issue of interracial marriage? First, contrary to claims of cultural conservatives, the Supreme Court’s ruling today can’t be characterized as the imposition of elite political preferences on the nation as a whole. The solid majority of the nation as a whole supports gay marriage, and it seems likely that within a very few years, opposition to the institution will be as marginal a position as (at least open) opposition to interracial marriage is today.

Second, the history of opposition to interracial marriage indicates that a Supreme Court decision by itself will often do little or nothing to sway public opinion in regard to this sort of issue. In 1967, the Supreme Court of the day threw down a legal gauntlet to one of the most powerful – and, as it would develop – intractable symbols of institutionalized racism in America. That decision seems to have had almost no effect on public opinion, which changed very slowly, and largely if not wholly for other reasons.

By contrast, today the Supreme Court is merely putting its stamp of approval on a political movement that was already winning the battle in the court of public opinion. And that stamp will probably have little effect on the cultural processes that determine how quickly gay marriage receives something closer to universal public acceptance.

By Paul Campos

Paul Campos is a professor of law at the University of Colorado at Boulder.

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Related Topics ------------------------------------------

History Interracial Marriage Marriage Equality Same-sex Marriage The Supreme Court