During an interview with Bloomberg News on February 11, 2015, Supreme Court Justice Ruth Bader Ginsburg announced that she believed the American people would accept a decision by the Supreme Court “this year” holding that “there is a constitutional right for same-sex couples to marry”—which is to say, a decision forcing all fifty states to license same-sex relationships as marriages. “The change in people’s attitudes on that issue has been enormous,” she said.
Justice Ginsburg’s comments were not only wildly inappropriate—they were also untrue. Justice Ginsburg has both accepted and contributed to a false narrative about American public opinion on the subject. As noted in the brief I filed on behalf of expert political consultant Frank Schubert and the National Organization for Marriage, an overwhelming majority of Americans have, over the past decade, voted to retain the longstanding, biologically rooted understanding of the institution of marriage.
The numbers are staggering, though you won’t see them reported in the nation’s major newspapers. The issue has been on the ballot in thirty-nine statewide elections in thirty-five different states. The cumulative total: 51,483,777 votes in favor of retaining the man-woman definition of marriage, versus 33,015,412 votes in favor of same-sex marriage. That’s a vote margin of 60.93 percent to 39.07 percent, a landslide in American politics.
What About Public Opinion Polls?
Our brief also includes Frank Schubert’s expert analysis of recent public opinion polls that purport to show that a majority of Americans now support same-sex marriage. Schubert’s conclusion: those polls are severely flawed, employing a number of well-known polling tactics that distort the results, such as positive response bias (that is, phrasing the question so that the “yes” answer yields the preferred response); multiple-issue questions (to encourage a positive response even if there is agreement with only part of the question); and “priming” (the practice of placing the critical question after a series of non-controversial questions, in order to lay the groundwork for the preferred response). One of the nation’s most-recognizing polling organizations, Gallup, now “primes” its same-sex “marriage” question on all of its polls, for example, even though it knows from polls when it “primed” only half of the respondents that priming yields about a 6-7 point difference in the results.
Moreover, the polls often suffer from what experts call “social desirability bias”—that is, when respondents give the answer they think the interviewer wants to hear, or that they believe is the politically/socially correct answer, even if they do not actually hold that view.
Our brief also reviews several recent national polls that do not prime, do not create a positive response bias in favor of same-sex marriage, and do not skew the results by asking multi-layered questions. A WPA Opinion Resource poll in February 2015, for example, asked a random sample of voters whether they agreed or disagreed with the following straightforward statement: “I believe that marriage should be defined ONLY as a union between one man and one woman.” Fifty-three percent of voters surveyed said they agreed with the statement, while 43 percent disagreed. It’s true that this number is down slightly from just after the 2012 election, when 60 percent of voters backed conjugal marriage. Still, coming on the heels of claims by Gallup and others that a majority of Americans support same-sex marriage, the 10 point margin in favor of traditional marriage is significant. It is even more remarkable when one considers the decade-long propaganda effort in favor of “marriage equality” that has been waged through virtually every one of our nation’s definers of culture—Hollywood movies and television, music videos, college campuses, etc.
Schubert’s conclusion? The only thing that can accurately be said about recent polls is that the nation remains deeply divided on the issue of same-sex “marriage.”
The Unparalleled Intensity of the Marriage Debate Won’t Be Solved by Judicial Arrogance
Moreover, the intensity of the fight over marriage is unparalleled in modern American politics. Over the past decade and a half, more than $215 million has been spent on ballot initiatives defending (or trying to overturn) the traditional, biologically rooted definition of marriage. No matter what Justice Ginsburg says, the more than fifty million voters who have spent an immense amount of time and treasure to protect the fundamental nature of the institution of marriage are not at all likely to “accept” a Supreme Court decision that takes the decision about marriage policy away from them.
Last year, Justice Kennedy addressed this kind of judicial arrogance in a different context, rejecting an effort to take the issue of race-based preferences in college admissions away from the voters. “This case is about who may decide it,” he wrote in Schuette v. Coalition to Defend Affirmative Action. “There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside [state] laws that commit this policy determination to the voters.” Even more significantly, he stated that “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
Judicial interference in hotly contested policy disputes is never wise. One such attempt, over forty years ago, has so polarized our nation’s politics that respected commentators and legal scholars from across the ideological spectrum have noted its destructive consequences for our democracy.
The author of Roe v. Wade “did more inadvertent damage to our democracy than any other 20th-century American,” wrote David Brooks in the New York Times in 2005. “When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since.” Instead of being known as the great uniters—as no doubt they hoped their legacy would be—these justices have gone down in history as the great dividers, overshadowing what otherwise might have been exemplary careers on the Court.
On the liberal side of the political spectrum, Professor Cass Sunstein has noted that “the decision may well have created the Moral Majority, helped defeat the equal rights amendment, and undermined the women’s movement by spurring opposition and demobilizing potential adherents.” And Professor William Eskridge, a leading advocate for same-sex marriage, has written about the political “distrust” that has arisen since the Roe decision because it “essentially declared a winner in one of the most difficult and divisive public law debates of American history” and allowed no recourse to the political process.
The Constitution, Equal Rights, and the State’s Interest in Marriage
The petitioners’ demand that the Court “find” a right to same-sex “marriage” implicit in the text of the Fourteenth Amendment threatens to drag the Supreme Court, and the country, into another such quagmire. If the Constitution clearly compelled such a result, then it would be the “painful duty” of the Court to say so, a position recognized by the Court nearly two centuries ago in the landmark case of McCulloch v. Maryland. But the Constitution’s text does not remotely compel such a result. Without such a clear command, accepting the petitioners’ arguments would more accurately be described as a “self-inflicted wound” than the exercise of a “painful duty.”
So why is it that the Constitution’s text does not mandate same-sex marriage throughout the land? It does provide that “No State shall . . . deny to any person . . . the equal protection of the law.” Hence the “marriage equality” mantra from the proponents of same-sex marriage. That mantra may be a good debating tactic, but it is not a good legal argument, for it assumes the very thing in dispute.
This is a fundamentally important point, for the Supreme Court has frequently recognized that “The Equal Protection Clause . . . is essentially a direction that all persons similarly situated should be treated alike.” “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Accordingly, the issue is whether same-sex and opposite-sex relationships are similarly situated. This is a “threshold” inquiry, for the Equal Protection clause does not apply if the relationships are not similarly situated.
Moreover, the issue is not whether the relationships might be similarly situated in some respect, but whether they are similarly situated in ways relevant “to the purpose that the challenged laws purportedly intended to serve.” So whether same-sex couples are equally capable of loving each other, or of expressing emotional support and public commitment toward each other, as several of the lower courts have claimed, is beside the point if those things are not central to the purpose advanced by the state when getting involved in the marriage business in the first place.
And here, the historical purpose cannot be more clear. Marriage is and always has been about much more than the self-fulfillment of adult relationships. Because the institution of marriage is the principal manner in which society structures the critically important function of procreation as well as the rearing of children, it has long been recognized as “one of the cornerstones of our civilized society,” “fundamental to our very existence and survival.” Same-sex and opposite-sex couples are simply not similarly situated with respect to at least that fundamental purpose.
That is undoubtedly why experts offered by the plaintiffs in the California marriage case admitted that redefining marriage to include same-sex couples would profoundly alter the institution of marriage. And why Tom Stoddard has noted that “enlarging the concept to embrace same-sex couples would necessarily transform [the institution of marriage] into something new.” As early same-sex marriage proponent E.J. Graff noted, “Same-sex marriage is a breathtakingly subversive idea,” and if it ever “becomes legal, [the] venerable institution [of marriage] will ever after stand for sexual choice, for cutting the link between sex and diapers.”
Such a radical change in the very meaning of a core social institution is likely to have profound, and perhaps unforeseen, effects. Redefining marriage to encompass same-sex relationships “will introduce an implicit revolt against the institution into its very heart.” Indeed, same-sex marriage is “the most recent development in the deinstitutionalization of marriage,” the “weakening of the social norms that define people’s behavior in . . . marriage.” It would be folly of the highest order for the voters themselves to adopt such a radical experiment, but at least they would be free to correct course once the consequences of their folly became clear. A judicial dictate, reading into the Constitution a command for same-sex marriage that is clearly not there, would add illegitimacy to folly, and it would be much more difficult to unravel.
The more than fifty million people who, by their votes, have demonstrated that they continue to understand the profound importance of the institution of marriage deserve better. They deserve not to have their participation in the democratic process “demeaned,” as Justice Kennedy himself described it, by a Court decision that “presume[s] that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
John C. Eastman is the Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University’s Dale E. Fowler School of Law. He is also the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, in which capacity he served as counsel for the brief summarized above, and the Chairman of the Board of the National Organization for Marriage.