On June 26, 2015, the United States Supreme Court, in a narrow 5-4 decision in Obergefell v. Hodges, re-defined marriage for the entire country by finding a “right” to same-sex marriage in the 14th Amendment.
In the months leading to the decision, the media and polls trumpeted the notion that the overwhelming majority of Americans ― 60 percent — supported same-sex marriage. “Love Wins,” #LoveIsLove and rainbows popped up everywhere on social media reinforcing this purported seismic shift in public opinion on marriage.
In the aftermath of the decision and media frenzy, however, a different picture is emerging of an America not quite sold on the media hype. Let’s take a look at some new poll numbers.
Reuters conducted a poll from June 26 – July 8, which showed only 51 percent of Americans supported same-sex marriage — not the 60 percent previously reported by other media.
Then, just three weeks after the ruling (July 9-13), the Associated Press (AP) asked over 1,000 adults what they thought about same-sex marriage, and the numbers showed an even more remarkable divergence from the pre-decision media reports:
- Only 42 percent of Americans support same-sex marriage; 40 percent oppose
- Only 39 percent approve of the Supreme Court ruling; 41 percent disapprove
From “overwhelming majority” to a “statistical dead heat” in a few short weeks? What’s going on?
Polls are notoriously unreliable; and sometimes manipulated in the framing of questions in order to “push” the response in a desired direction. With that caveat, polls can still be interesting barometers of where the public is at.
And in what appears to be a huge victory for religious freedom, the AP poll also indicates that:
- 59 percent of Americans support the right of wedding-related businesses to say “no” to providing goods and services for same-sex weddings; and
- In a conflict between religious freedom and the rights of gays and lesbians, Americans want government to favor religious freedom 56 percent to 39 percent.
Why are Americans more resistant to same-sex marriage than we’ve been led to believe?
Part of the reason may be the increasingly high-profile cases of government hostility toward business owners whose consciences have been trampled in the rush to promote same-sex marriage to the public.
In the week following the Supreme Court marriage case, Oregon wedding cake bakers Aaron and Melissa Klein were fined $135,000 for refusing to bake a cake for a same-sex wedding, and then ordered not to speak about their case. People may have also heard about the Washington florist and the Denver baker facing similar government action.
Those Dissenting Justices
Or perhaps the public heard and reflected on the concerns of the four justices of the Court who dissented from the 5-4 ruling. Four themes have emerged from these justices:
- The U.S. Constitution is silent on the issue of same-sex marriage.
- The People, not the courts, should decide the issue of marriage through democratic means.
- This decision poses a threat to religious freedom.
- The opinions of five justices should not decide matters of policy for the entire country.
Here are noteworthy highlights from each of those dissents:
Associate Justice Antonin Scalia
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”
“But the Court ends this debate, in an opinion lacking even a thin veneer of law.”
“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.”
“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
“And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
“Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. …Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.”
Chief Justice John Roberts
“[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”
“The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”
“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
“This universal definition of marriage, as the union of a man and a woman, is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.”
“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”
“There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.”
“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
Associate Justice Clarence Thomas
“The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. … Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.”
“Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.”
“In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”
“Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”
Associate Justice Samuel Alito
“Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question in these cases, however, is not what States should do about same-sex marriage, but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.”
“Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”
“In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”
“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
“By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”
“Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
Read the entire Obergefell decision.
Read Roberts’ dissent, with Scalia and Thomas joining, starting on page 40.
Read Scalia’s dissent, starting on page 69.
Read Thomas’ dissent, starting on page 78.
Read Scalia’s dissent, starting on page 96.
Learn more about all nine justices on the Court.