THE BLOG
03/27/2013 09:43 am ET Updated May 27, 2013

Gay Marriage Without the Robes

What a difference a few hours in Washington -- and at the Supreme Court -- can make this week. On Tuesday morning -- the morning of the first day of oral arguments before the Court about the constitutional issues related to gay marriage -- there was plenty of discussion about what might happen if gay marriage wins in the Court. David Cole, writing in The New York Times, argued that it would be "unwise" for the Court to decide that every state must recognize gay marriage because of the public reaction that would ensue. Michael Klarman, also writing in The New York Times, was more optimistic about the public reaction to such a decision, and I wrote a piece for The New Republic also arguing that the reaction to a gay marriage victory might not be as negative as many like Cole feared.

Within a few hours, though, the discussion had changed. No longer was the focus on the aftermath of a gay marriage victory in the Court, but instead on the aftermath of a decision to punt, or avoid, the constitutional status of gay marriage. Justice Anthony Kennedy asked during oral arguments whether the case had been "properly granted." Right after Tuesday's oral arguments ended, Slate started a discussion about "what happens if the Supreme Court passes on Prop 8?" It is therefore time to ask a different question from the one being asked a day ago: what would happen if the Court avoided deciding whether there is a constitutional right to same-sex marriage?

A Court dodging the issue has been widely seen as either insignificant or perhaps even helpful for gay marriage, and thus Tuesday's oral arguments were not a major cause for concern. As Cole argued in his essay, "national recognition of same-sex marriage is inevitable." In other words, the destination of gay marriage is inevitable, and the question is simply whether we take the faster, national judicial road or the slower, state-by-state political road. But there is reason to believe that all roads after a Court decision punting this case do not lead to every state recognizing gay marriage, either ever or at the least anytime soon.

This is in part because of a simple but overlooked truth of American democracy: public preferences and public policies are not the same thing. Just because public opinion supports something does not mean it will become law, either at the federal level or at the state level. There have been many good studies of when public opinion becomes public policy, but the relationship is not automatic, let alone immediate.

The many legislative battles about gay rights provide ample evidence that public policy does not perfectly represent public opinion. There is clear national majority support for a federal law banning sexual orientation discrimination in the workplace, yet the Employment Non-Discrimination Act banning this has yet to pass Congress. This is true at the state level as well. One study found that in 2009 nearly two-thirds of Virginians supported such a law, yet Virginia has no law banning employment discrimination on the basis of sexual orientation.

It is not hard to imagine a similar mismatch existing for gay marriage. In approximately half of the states, a majority of people support gay marriage, yet only in five of these states (if you include the District of Columbia) have political leaders created gay marriage without facing some form of court order to do so.

Two states that are on the higher end of support for gay marriage present great examples of the disjunction between public opinion and public policies. In Rhode Island, a recent poll indicated that only 26 percent of residents are opposed to gay marriage. Rhode Island, though, recently enacted a civil unions law rather than a gay marriage law. New Jersey might be the state where public opinion is the most supportive of gay marriage, yet also only has a civil unions law because of the veto of a gay marriage bill by Governor Chris Christie.

It could be that things are different even if the Court decides to avoid the issues presented in yesterday's oral argument. Perhaps the attention generated by the oral arguments will motivate state political (and even judicial) leaders to do more, in part because they will be even more aware that public opinion is becoming even more supportive of gay marriage.

Unless this happens, and happens in many places, a punt by the Court on Tuesday's gay marriage case could mean more than simply delaying the inevitable. Where the country stands on gay marriage in the future might be a foregone conclusion. But what federal and state legislatures do about this is far from a foregone conclusion. As a result, a punt by the Court might mean that gay marriage supporters will have to wait a very long time to get the ball and the momentum back.

David Fontana is Associate Professor of Law at George Washington University Law School.

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