Jeffrey Toobin has a blog post up at The New Yorker looking at the relationship between the challenges to the Defense of Marriage Act (DOMA) and the Prop 8 challenge that the Supreme Court may choose to hear in the coming months and the marriage initiatives in Maine, Maryland, Minnesota and Washington. It’s an interesting read that essentially argues that electoral wins may provide the cover for the court to move forward on marriage.
The real world, however, works very differently. The courts, especially the Justices of the Supreme Court, are acutely aware of how their rulings reflect (or conflict with) public opinion. Even Justices who are sympathetic to legal claims worry when their positions put them too far out of step with the voters…
…It was not until 1967, in Loving v. Virginia, that the Justices got around to declaring that states could no longer ban interracial marriage. Many (but not all) such laws were ignored or obsolete by that point. This is not to diminish the significance of Loving. The case was and remains a key practical and symbolic statement about race and the constitution. But by 1967, the hard work of changing the country on this issue had already been done by the civil-rights movement. The Court was a lagging indicator of where the country already was.
And so while both cases, as I wrote recently, are potential landmarks, neither may turn out to be as important as four ballot initiatives. The votes will give us the best picture of where the country is on same-sex marriage. The snapshot will be imprecise, of course. All four states are generally Democratic in their orientation, so they are not a true cross-section of country. But given the Court’s history, even the more liberal justices may be reluctant to impose same-sex marriage on the country if the people—the voters—repeatedly say that they do not want it. The polls predict close races in all four states. The results will echo well beyond their borders.