In Supreme Court Same-Sex Marriage Decision, Public Opinion Is No Guarantee

Opinion polling now favors same-sex marriage, but the Supreme Court has flouted public opinion in major decisions in the past.

More Americans now favor marriage eqaulity than oppose it — recent polls have found from 49% to a full 58% in favor. But that doesn’t necessarily mean the Supreme Court will rule in favor of gay marriage when it considers challenges to California’s Prop 8 and the federal Defense of Marriage Act this week — in several major decisions concerning civil rights and liberties in the last half-century, the Court has run counter to public opinion.

In the cases of Loving v. Virginia, which struck down state laws banning interracial marriage; Abington School District v. Schempp, which declared Bible reading in public schools unconstitutional; and Texas v. Johnson, which found flag-burning to be constitutionally protected, large majorities of Americans at the time disagreed with the Supreme Court’s decision. On interracial marriage, public opinion is now aligned with the Court’s decision — on flag-burning and prayer in schools, it’s not, though it may be moving in that direction.

Some court-watchers think the recent polling on gay marriage will make the Court more comfortable ruling in favor of it; but if they chose to go against the polls, it wouldn’t be the first time.

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