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Gay Marriage Polling And Public Opinion: Should It Influence Judicial Decisions?

 Growing support for same-sex marriage may sway the Court in the Proposition 8 case.  In November of 2008, the people of California voted on Proposition 8, the “California Marriage Protection Act” which declared that only marriages between one man and one woman would be recognized.  Since then, many lawsuits have been brought against the act.  According to a recent article in the Los Angeles Times, “Two California couples challenging Proposition 8’s ban on same-sex marriage, in the case known as Perry vs. Schwarzenegger, won a federal judge’s ruling last year that the 2008 voter initiative violates the Constitution’s guarantees of equal protection and due process. Gay marriage remains suspended, though, pending an appeal tied up in procedural delays likely to stall an expected U.S. Supreme Court challenge for at least two more years.”

The polling numbers showing the support are growing steadily, and with an additional two years of delays until the case gets to the Supreme Court the numbers stand to rise even higher.  “There have been at least five national polls since last year that have shown majority and growing support for gay marriage rights. In the most recent, a Gallup survey on values and beliefs found that 53% of Americans support the right of gays and lesbians to legally marry.

The Gallup poll reported the most significant changes in attitudes among young voters and men, with 70% of those between 18 and 34 in favor, a gain of 16 percentage points since last year, and men 18 to 49 supporting same-sex marriage by 61%, up from 48% last year. Other polls have tracked an even sharper rise in California and the West in favor of allowing same-sex marriage to resume. A CNN survey last month put support for gay marriage at 61% among those questioned in Western states. Public Policy Polling, a Field Poll survey and the Public Policy Institute of California have also recorded majority support for gay marriage rights over the past year.”

Courts are supposed to decide matters based on law, not public opinion.  However, “[i]n the U.S. Supreme Court‘s landmark Roe vs. Wade opinion on abortion rights, late Justice Harry Blackmun is said by historians to have kept polling data in the case files and relied on it to help shape his decision, said Loyola Law School professor Douglas NeJaime, an expert on sexual orientation law.”  On one hand, if it were not for the public opinion at that time, Brown vs. Board of Education may not have been founded the way it was.  On the other hand, the court system is not in place to fuel a particular line of thinking, or to appease the public at large – it is there to apply and interpret the law.


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