March 22, 2013
On March 26 and 27, the U.S. Supreme Court will hear oral arguments in two cases challenging the definition of marriage as the union of one man and one woman. In Hollingsworth v. Perry, they will consider the constitutionality of the definition as enshrined in the California state constitution by voters in that state when they adopted “Proposition 8” in 2008 (effectively reversing the decision of the California Supreme Court to impose same-sex “marriage” earlier that year). In Windsor v. United States, they will consider the constitutionality of the same definition of marriage being adopted for all purposes under federal law through the 1996 Defense of Marriage Act (DOMA).
In anticipation of those oral arguments, I am offering a series of blog posts with questions and answers related to the issue. Today, we look at the question of whether recent polls indicating growth in support for redefining marriage mean that such a redefinition is “inevitable.”
How should we interpret recent polls on redefining marriage to include homosexual couples?
The lead story in the Washington Post on March 19 was headlined “Record support for gay marriage.” It trumpeted that a new Washington Post-ABC News poll found that 58% of Americans now support redefining marriage to include homosexual couples, including 81% of those between the ages of 18 and 29.
Although I was quoted in the story, a lot of my points did not make it in. Here are some important considerations:
1) The wording of the poll was horribly biased. The first question asked, “Do you think it should be legal or illegal for gay and lesbian couples to get married?”
Americans have enough of a visceral streak of libertarianism that they shy away from making things “illegal,” whether it is Big Gulps or “gay marriage.” The word “illegal” may even conjure up images of criminal sanctions.
The fact is, most of what homosexual couples want in their relationships is already perfectly legal. It is legal for them to have sex; it is legal for them to live together; it is legal for them to raise children in their household; it is legal for them to protect their legal and financial interests using private contractual arrangements, such as a health care proxy, power of attorney, and a will; it is legal for them to celebrate their relationships in a private commitment ceremony; it is legal for places of worship to conduct such ceremonies if they wish to; it is legal for them to purchase and wear wedding rings; etc.
It is also worth noting that in California, whose constitutional amendment defining marriage as the union of one man and one woman is currently being challenged in the Supreme Court, same-sex couples have access, through “domestic partnerships,” to every legal benefit available to married couples under state law. The dispute over the California marriage amendment known as Proposition 8 is entirely over the use of the word “marriage” by the state.
Questions which frame the issue as one of equality or rights will tend to generate a sympathetic response, especially from young people. Logically however, there is a question prior to that of “Who has the right to marry”—and that is the question, “What is marriage.” Poll questions asking about the definition of marriage taken in May 2011, July 2011, and in September and November 2012 have shown that anywhere from 57% to 64% of Americans still believe that marriage should be defined as the union of one man and one woman.
The second poll question asked, “Do you think each state should make its own law on whether same-sex marriage is legal or illegal there, or do you think this should be decided for all states on the basis of the U.S. Constitution?”
Sixty-four percent said it “should be decided for all states on the basis of the U.S. Constitution.” The Post seems to interpret this as support for the Supreme Court redefining marriage for all fifty states in the marriage cases it is now considering. Note, though, that the question did not ask about the Court—it asked about the Constitution.
Americans believe in the Constitution—obviously, states should not be allowed to do things that violate it. But the Constitution clearly includes no explicit “right” to same-sex “marriage,” and whether it includes an implicit one is precisely the issue that is sharply in dispute. Furthermore, opponents of marriage redefinition (such as FRC) have also supported the idea of “deciding this for all states on the basis of the U.S. Constitution”—by amending the Constitution to define marriage nationwide as the union of one man and one woman. A question that allows people on diametrically opposed sides to give the same answer is not very useful.
The third question in the poll was: “Do you think that being homosexual is just something that people choose to be, or do you think it’s just the way they are.” This is a classic “have you stopped beating your wife”question, because it offers no good choice.
The meaning of “being homosexual” is not as clear as it may seem. “Sexual orientation” is actually an umbrella term for three quite separate things—a person’s sexual attractions, their sexual behavior, and their sexual self-identification. We tend to assume all three will be congruent, but research shows that there are many exceptions.
Sexual attractions are largely not something people “choose.” However, people obviously do choose their sexual conduct and choose how they identify themselves. Is a person who experiences same-sex attractions, but does not engage in homosexual conduct and does not self-identify as “gay,” a “homosexual?”
Also unclear is the meaning of “just the way they are.” If “the way they are” is taken to mean that homosexuality is an innate and immutable trait present from birth, then even the fact that same-sex attractions may not be “chosen” does not necessarily prove that “it’s just the way they are.” If developmental forces in childhood influence the development of homosexual attractions (as considerable evidence suggests), then they would neither be a “choice” nor an inborn identity.
2) Young people are not as unanimous on the issue as is believed. It’s not surprising that younger voters are somewhat more likely to support marriage redefinition than their elders. After all, they have been subjected to a drumbeat of support for it from the news media, entertainment media, and higher education for literally as long as they can remember. Nevertheless, when they have the opportunity to experience a full debate in which both sides are fully aired, even the younger generation is far more sharply divided on the issue than the Post’s 81% figure would suggest. In North Carolina, where a constitutional amendment defending marriage as the union of a man and a woman was adopted last May, a comparison of pre-election polls with the results on Election Day led to the conclusion that while younger voters opposed the amendment, it was only by the narrowest of margins (51%-49%).
3) Ultimately, the only poll that counts is the one taken on Election Day. Although last November, voters in three liberal states (Maine, Maryland, and Washington) voted to redefine marriage, only six months earlier voters in North Carolina overwhelmingly approved the thirtieth state constitutional amendment to define marriage as the union of one man and one woman. A team losing by a score of 30-3 can hardly be said to be winning the game.
4) Ironically, these polls may actually reduce, rather than increase, the likelihood that the Supreme Court will decide to redefine marriage. The advocates for marriage redefinition (and the Obama Justic Department) are arguing that the natural definition of marriage is discriminatory on the basis of sexual orientation, and that classifications which disadvantage homosexuals should be subjected to a legal principle known as “strict scrutiny.” One of the usual criteria for applying strict scrutiny, however, is that the group in question suffers from “political powerlessness”—an argument that is becoming harder and harder to make with any credibility.