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The “Inevitability” of Gay Marriage

Mathematical models are generally wrought with problems depending on the information fed into those models. For example, depending on the data entered, we can derive evidence for such now disputed notions as global warming caused by man, a $1 trillion stimulus being a “success,” a Mitt Romney victory in 2012, etc. New York Times writer Nate Silver recently used a statistical model to “predict” whether gay marriage will prevail in any state by the end of this decade. Using data from national polls and specific to states, he developed a regression analysis that, when tested against results from previous years in states that held referendums on the issue, proved rather accurate. He then used more recent data to predict how states may vote in the future given a starting point baseline and a projected trend in the attitudes towards gay marriage in every state.

Nationally, based on eight polls this year, gay marriage now receives more support than opposition, but as Silver notes, given the range of scores for acceptance, there should be serious consideration as to whether supporters of gay marriage are now a majority. Overall, the average is 51% support versus 43% opposition to gay marriage. Compared against figures from 1996 when DOMA- the law now in question before the Supreme Court- was passed, this change in public opinion is astonishing. In 1996, polling indicate close to 70% opposition to gay marriage, although the subject itself was not the “controversy” it is today. Silver notes that the acceptance of gay marriage has been accelerating in recent years and an analysis of the polling data indicate that acceptance of gay marriage certainly picked up around 2004. In all likelihood, the events in Massachusetts in 2004 brought the issue to the fore and focused the nation’s attention on the gay marriage issue. Since then, eight more states plus DC and some Indian tribes have recognized gay marriage. That averages out to, not counting the states that recognize civil unions between same sex couples, a rate of one state every year recognizing gay marriage. Yet despite the court ruling that led to gay marriage in Massachusetts in 2003, over the ensuing year there was only 33% popular support for gay marriage. As Silver notes, since 2010 there have been 37 major national polls on the issue and all but four demonstrate support for same sex marriage.

For the gay rights community, the apparent success in winning the public relations war had not resulted in success in elections or in state legislatures. Perhaps the only example of “success” between 2004 and 2012 was defeat of an Arizona initiative to ban both gay marriage and civil unions although two years later Arizona voters voted down gay marriage exclusively leaving open the option of civil unions. All this changed in 2012 when voters in Maine, Maryland, Minnesota and Washington “approved” gay marriage if not outright, then laying the groundwork for future consideration of the issue by eliminating official state definitions of traditional marriage. Silver’s model, in fact, predicted victories for gay marriage in these states and the resulting defeat in North Carolina the previous year. Variations in his model’s predictions from actual results (he overestimated in some states, underestimated in others) likely resulted from complications arising from the ballot questions themselves. Some asked voters to amend their state constitution while others asked them to approve a legislative action.

Silver then goes back in time and attempts to predict, using the available data and his model, whether any state would have been ready to approve gay marriage in 2008. His results are rather stark- nine jurisdictions would have accepted gay marriage in 2008: DC, Massachusetts, Rhode Island, Hawaii, Connecticut, New York, Vermont, New Hampshire and New Jersey. This is pretty accurate since Jersey recognizes civil unions while Rhode Island seems to be the New England outcast although they will likely have gay marriage legislation by year’s end. This data also accurately predicts the rejection of gay marriage in North Carolina (which voters did in 2011) and even the success of California’s Proposition 8 which prevailed.

So, if Silver’s model and data are correct, he pretty accurately looked into the past and applied the model. But, what does the model tell for the future? The model predicts that between 2012 and 2016, popular opinion in twelve states will shift in favor of gay marriage. However, the breaking point for ballot success appears to be about 54%. Hence, even though popular opinion will reach the 50% mark in those states, it will not necessarily reach 54% except in Delaware, Washington (already approved), California and Oregon. This model suggests that if Proposition 8 was before the voters in 2013, it would be soundly defeated. Incidentally, that option was specifically addressed in oral arguments before the Supreme Court when asked whether Proposition 8 was a done deal and proponents of the initiative conceded that the issue could be resubmitted to the voters of California.

Between 2016 and 2020, another 11 states would show at least 50% public opinion approval of same sex marriage and then all but six states (South Carolina, Arkansas, Georgia, Louisiana, Alabama, and Mississippi) still showing disapproval post-2020. The model predicts that besides the 2012 approval of gay marriage in Washington and Maryland, five more states will allow gay marriage before 2016: Delaware, California, Oregon, New Jersey and Rhode Island. In fact, public opinion approval is currently sufficient today in all these states. By 2020, besides Maine which has already approved it, another ten states will approve gay marriage, including two red states- Montana and Arizona. Post 2020, all but 11 states will approve gay marriage according to the model, but then five of them will sometime after 2020 leaving only the six “outcast” Southern states.

How does all this figure into the recent Supreme Court gay marriage cases? There is no doubt from oral argument that the Justices are torn on the issue. Basically, they are presented with three arguments: one is technical (the standing issue) in the Proposition 8 case, one is based on the Equal Protection Clause, and the third is based on the concept of federalism. If standing is to be invoked in the Proposition 8 case out of California, the case most likely to do so, then gay marriage would become a practical reality in California, but California only. The federalism issue was addressed tangentially in the arguments. Specifically, several Justices questioned whether the Court should be involved in such a contentious issue and whether the issue should be left to the state electoral and legislative processes to work out. Three quotes from the bench seemed to indicate that was where the Court was headed.

For example, Kennedy’s assertion that the Court was headed into “uncharted waters, or over the cliff” indicate a hands-off attitude towards the issue. Alito likewise expressed these sentiments when he questioned whether the Court was delving into an area younger than “cell phones and the Internet.” But, most importantly, Justice Sotomayor in one line of questioning asked whether the Court was moving too quick in this area by stating that for 50 years the Court let racial segregation “perk,” meaning percolate. Coupled with previous out-of-Court statements and written words from Ginsberg about moving too fast vis-a-vis a connection to Roe v. Wade, there may be enough votes for the Court to leave the entire issue to the states. If Silver’s analysis is in any way accurate, then it will not “perk” for 50 years, but in considerably less time. However, Ginsberg would have to put her vote now where her mouth and written word has been in the past.

To add impetus to this argument, the lawyers in the DOMA case left the Court a rationale for doing just this. She stated (the lawyer for Windsor, the lesbian woman in the case) that there has been a “sea change” in public attitudes and opinions towards the concept of gay marriage and towards homosexuality in general. If she is correct, as many Justices jumped on including Alito, Roberts, and Scalia, then there should be no harm in letting the legislative process work its way out in the states. Donald Verilli, the Solicitor General arguing the federal government’s case, argued more on the Equal Protection line of reasoning. But, this “sea change” admission is the Court’s “out” to avoid the Equal Protection question. For those reasons, I personally believe they will not issue some broad proclamation of gay rights and moving analysis of laws affecting homosexuals to some heightened level of scrutiny, unless the law specifically targets gays or attempts to take away a previously granted right (which would violate Romer). Also, a recent case at the lower level resulted in a victory for the gay rights community. In order to “qualify” for some level of judicial scrutiny above rational basis, the group affected usually has to be traditionally discriminated against AND politically weak or impotent. While most can agree that gays have been and, in some cases, continue to be the targets of discrimination, the argument that they, as a group, are politically weak or impotent is without consistent evidence. While they may not prevail in a state like Louisiana, they did prevail in this lower court case in a state like Nevada. Likewise, they DID prevail in Maine and Minnesota, and in Maryland and in Washington in 2012 at the ballot box. If reconsidered today, they would likely prevail in states like New Jersey, Rhode Island, and even California.

The fact is that there is longitudinal evidence lacking or inconsistent on the issue of gay marriage and its effects on society, child-rearing, economic considerations, etc. Granted, same sex marriage may be relatively new to America, but equating the effects in Holland or Sweden to that in the United States is moot. There, we are talking about homogeneous societies whereas the United States is, at the end of the day, an amalgam of nationalities which together form a unique nationality. That is the worry for moving too fast in this area that perplexes this Court and was echoed in the words of such disparate political and legal ideologies as those of Sonia Sotomayor, Samuel Alito, and Ruth Bader Ginsberg.

It is often difficult to divine the outcome of any Supreme Court case based on oral arguments. The one thing anyone can divine from these cases is that the result of any decision will be close. It may just be a plurality decision that may further muddle the picture. Also, the decision will not come down until June, perhaps the last day of this term. In the end, it would appear not only from hypothetical statistical models but also from real life voter approved ballot referendums or legislative actions that same sex marriage will become a reality in more states as this decade draws to an end. The hope is that in a country the size of the United States, an institution like marriage is not “going over the cliff” as Justice Kennedy expressed. As Justice Roberts discussed somewhat tangentially, the traditional definition of marriage has survived over thousands of years and served a vital societal function. Before anyone makes a decision to “experiment” in the laboratory of democracies that are the states, rational debate and consideration need to take place. Eighty minutes of oral argument before the United States Supreme Court clearly fails that test.

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