The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For years the specter of a backlash like the one said to have been generated by Roe v. Wade has haunted the constitutional debate over same-sex marriage. Even some supporters have worried about it. If courts forced states to allow same-sex marriages, the reasoning went, there would be widespread resistance in the form of popular protests, civil disobedience, refusals by state officials and marriage-license clerks to accept the decision, and perhaps even finally the coalescing of a dedicated anti-SSM movement able to mobilize large numbers of voters.
Furthermore, we have been warned, nationwide same-sex marriage would bring an unprecedented wave of conflicts between married same-sex couples and religious traditionalists who would refuse to provide services or in any other way to facilitate their marriages. Thus, we'd finally see clear examples of the harm created by same-sex marriage.
These fears have been largely unrealized so far. As of 2013, according to the UCLA's Williams Institute, there were about 130,000 same-sex marriages in nineteen states across the United States. While there have been a few celebrated conflicts involving wedding photographers, cake bakers, and the like, and a smattering of clerks who refused to issue marriage licenses to same-sex couples, nothing like the doomsday predictions have come about. The pattern in every state so far has been the same: same-sex marriage is fiercely opposed, same-sex marriage actually begins (by court order or legislative or popular vote), opponents raise alarms, and then people more or less go back to their lives, with polls showing that opposition gradually declines over time.
But until yesterday, same-sex marriage was legal in 19 states that were all either solidly Democratic (e.g., Massachusetts, Illinois, California, and New York) or have been leaning that way (e.g., Minnesota and Iowa). That's about to change, raising the possibility of much more legal, cultural, and political conflict.
The short-term result of the Supreme Court's rejection of seven petitions for certiorari is that same-sex marriage will be available in eleven more states. This includes the five states whose marriage laws were directly struck down by their governing circuit courts (Indiana, Oklahoma, Utah, Virginia, and Wisconsin) and, perhaps less quickly, the six other states in those same circuits (Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming). On that latter list, Colorado's attorney general has already joined plaintiffs' motion to lift the stay. Overall, marriage will be available to gay couples in 30 states covering more than 60% of the U.S. population. This includes almost two-thirds of the same-sex couples in the country.
What's more, what we might call the "red line" has now been crossed. Gay couples will be able to wed for the first time on an ongoing basis, and have their marriages officially recognized, in politically red states. These are places where the politics are overwhelmingly Republican, the voters are conservative, and the worshippers are morally traditionalist.
A good example of the new ground into which gay marriage will extend is Oklahoma. Going back to 1952, the state has voted Republican in fourteen of the last fifteen presidential elections (the only exception was Lyndon Johnson's landslide reelection in 1964). The Republican presidential candidate got about two-thirds of the popular vote in each of the last three elections. The state legislature is solidly GOP-controlled, as are statewide offices.
Fifty-three percent of Oklahomans are evangelical Christians, 16% are mainline Protestants, and 13% are Catholics. Oklahoma is the 11th most church-going state, although it's still behind new gay-marriage jurisdictions like Utah (5th), North Carolina (tied for 7th), and South Carolina (tied for 1st). A recent poll showed that two-thirds of Oklahomans strongly oppose (58%) or somewhat oppose (8%) gay marriage. The state's gay-marriage ban passed with 76% of the vote ten years ago, which suggests that change is coming very slowly in some parts of the country.
Among others, Family Research Council President Tony Perkins predicts a watershed moment of resistance ahead, followed by an erosion of support for same-sex marriage itself:
[T]ime is not on the side of those who want to redefine marriage. As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom. Parents will find a wedge being driven between them and their children as school curriculum is changed to contradict the morals parents are teaching their children. As more and more people lose their livelihoods because they refuse to not just tolerate but celebrate same-sex marriage, Americans will see the true goal, which is for activists to use the Court to impose a redefinition of natural marriage on the entire nation.
This strikes me as particularly wishful thinking, but we have indeed entered a new phase in the debate where same-sex marriages will face opposition that is both wide and deep.
Resistance to unpopular judicial decisions can take any number of paths. There's the path of Brown v. Board of Education, which was fiercely resisted in many states for more than a decade. But the principle of Brown establishing the unconstitutionality of racial segregation in public schools is now uniformly accepted.
There's the path of Roe v. Wade, which is strongly contested in our law and politics four decades on.
There's the path of Lawrence v. Texas, which was initially followed by a polling uptick in moral condemnation of homosexuality, and is still critiqued as a matter of constitutional law, but whose result is no longer in question. We don't see annual marches in front of the Supreme Court protesting Lawrence.
And for gay marriage itself we have the path of Goodridge, the Massachusetts high court decision allowing the first same-sex marriages in the country ten years ago. Goodridge, many people forget, sparked heated opposition in liberal Massachusetts, with the main legislative divide between those who wanted to ban gay marriages and those who wanted to ban any recognition of same-sex relationships. Massachusetts quickly moved on, as have the 18 other states (except possibly Iowa, where the issue continues to roil elections).
I remain convinced that even Americans who fervently oppose same-sex marriage now will see a profound difference between allowing someone to marry another person and allowing someone to abort an unborn child. We aren't likely to see protests blocking access to marriage-license bureaus or sidewalk counselors trying to talk gay couples out of marrying. Even if you oppose same-sex marriage as a matter of religious belief, you can get along in a nation that allows it in a way that you can't really ever make peace with what you believe is killing innocent children. That's especially true if, as I expect, the actual legal conflicts will be much less numerous, dramatic, and consequential than people like Tony Perkins predict. The Supreme Court's decision to let gay marriages proceed in hostile territory will allow an initial and slowly expanding test of that proposition.