Courts, Social Change, and the Power of
THIS CHAPTER directly addresses Gerald Rosenberg's argument that courts are quite ineffective at achieving social change and that minority groups that look to the courts for change will be disappointed. In connection with samesex marriage litigation, he has argued that litigation has had very little effect and has, in fact, led to a strong political reaction against it. Indeed, Rosenberg points out that nearly a decade after the litigation began, no right existed for same-sex couples to marry, and a significant majority of states and the federal government have specifically prohibited such marriages.1 In this chapter, I present evidence that challenges Rosenberg's claims on U.S. public opinion (as I did with Canadian public opinion), and broadens the view of the actual effects of same-sex marriage litigation by relying on a more constitutive analysis.
Central to Rosenberg's claim is the fact that public opinion has not substantially shifted since same-sex marriage litigation began, since, according to polls, in 1996, 27 percent of Americans supported same-sex marriage, and by 2000 this number was 34 percent.2 Rosenberg claims that this change is insignificant, but this fails to account for the socially and culturally embedded nature of the institution of heterosexual marriage. Receptivity to changes in this institution is not as easily reflected in public opinion polls as other, more routine, public policy areas. Viewed from this perspective, an increase of seven percentage points in four years of samesex marriage support can be seen as a significant shift.
And Rosenberg is not alone. Richard Posner has written that the U.S. public is staunchly opposed to same-sex marriage and even civil unions by citing one poll.3 Indeed, he asserts that for federal courts to find in favor of same-sex marriage “in the face of adamantly opposed public opinion would be seriously undemocratic.… It would be moral vanguardism.”4
The story is much more complex, however. First, public support for domestic partnerships and civil unions is higher than for marriage. A 1997 poll in Hawaii indicated that although 70 percent of respondents were opposed to same-sex marriage, only 55 percent were opposed to domestic partnerships.5 The litigation in that state likely influenced public opinion in the direction of relationship equality just as it had influenced some legislators. A Gallup poll in 2001 indicated that 44 percent of respondents nationally favored a civil union–style approach. This was up from 42 percent in 2000.6 In 2002 support rose to 46 percent, and was up to