The Supreme Court has just heard arguments in Obergefell v. Hodges, and no one knows at this moment how the Court will rule. There have been suggestions that the Court should not go too far too quickly and provoke an anti-gay backlash. Professor Tony Smith discusses the case and the backlash issue in this report and in an article in the Washington Post.
Professor Smith says that, after listening to the recording of oral argument in the case, he believes the Court will issue an opinion that provides a national rule on marriage equality, “whether directly or indirectly.” He points out that there are two issues before the Court in this case: Is there a Fourteenth Amendment right to be married? And if not, can a state refuse to recognize a marriage contract from another state. Ignoring the first question, Prof. Smith believes that a favorable ruling on the second question would effectively produce a marriage equality effect, even though state action would be required to make it happen.
Some observers have said that, based on comments by Justice Kennedy during argument, he would not rule in favor of same-sex marriage. However, Prof. Smith notes that Kennedy often pushes both sides of a question during arguments, and a reading of all of his comments suggests that he will come down on the side of marriage equality in the Court’s vote on this case.
Should there be a ruling in favor of marriage equality, Prof. Smith says that a backlash is not likely. “We have tested this every way you can.” The testing included experimentation, observation, and analysis of national data. Prof. Smith explains that backlash is “an enduring negative movement in public opinion.” The backlash issue was tested in a variety of ways, including using the Windsor and Perry decisions on California’s Proposition 8. The analysis also included studies of public opinion when other gay rights issues were in the news. Prof. Smith’s conclusion is that there is no evidence “that the public gets less friendly towards gay rights as the contestation goes forward.” Prof. Smith points out that there has been a lot of support for marriage equality in the last five years.
So based on all of the research and testing, Prof. Smith says that there is no reason for the Supreme Court to “go slow” in dealing with marriage equality. He compares this situation to the civil rights movement fifty years ago, when some white clergy in the South were saying that the movement was trying to go too fast and too far. But Martin Luther King’s Letter from a Birmingham Jail has become a classic statement of the importance of getting one’s rights. Prof. Smith opines that “if we go slow, real people every single day are harmed by the removal of the right to get married from their lives.”
Charles Anthony "Tony" Smith is an Associate Professor, Political Science in the School of Social Sciences at the University of California, Irvine. His research interests are law and legal institutions, globalization, international law, and comparative law. He is the author of several books and is also published in the Washington Post. The Legal Broadcast Network is a featured network of the Sequence Media Group.