Opponents of Proposition 8 rally outside San Francisco City Hall in August… (Wally Skalij, Los Angeles…)
A series of recent polls suggesting a majority of Americans support the right of gays to marry may influence the outcome of the legal dispute over California's ban on same-sex marriages, some legal experts and gay rights advocates predict.
The courts don't look to opinion polls when they decide cases, but shifts in popular sentiment can influence their thinking on evolving interpretations of civil rights, constitutional experts say.
"I do not believe that any justices base their decision on opinion polls, but that does not deny they can have a subtle effect," said Erwin Chemerinsky, dean of the UC Irvine law school and a renowned constitutional scholar.
In 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.
He and other legal analysts predict that by the time the lawsuit brought against Proposition 8 by two same-sex couples makes it way to the high court in 2013 or 2014, support for same-sex marriage will have continued to increase among voters, creating a more receptive environment if the justices decide that the initiative treads on constitutional rights.
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.
"It's now unquestionable that the majority of the American people support the freedom to marry and that those who oppose respect for gay families and fairness under the law are in the minority," said Evan Wolfson, president of Freedom to Marry, campaigning for same-sex marriage rights across the country.
"Now we don't have just a snapshot; we have a movie," Wolfson said of the national tide moving in favor of gay marriage. "This creates a climate of encouragement for elected officials and judges to do the right thing under the law."
Advocates with ProtectMarriage.com, which sponsored Proposition 8, dispute that the polls have any significance in their legal battle in defense of the gay marriage ban.
"Different polls come to different results all the time on this issue, but when voters are given a chance to vote, they side with traditional marriage despite what the polls say," said Andrew Pugno, the attorney arguing on behalf of ProtectMarriage.com, adding that the majority that matters is the 52% that voted for Proposition 8 in the November 2008 election.
The polls showing majority popular support "don't affect our case in any way because we are dealing with questions of law as opposed to the public policy debate," he said.
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.
Chemerinsky and others said the polls may have some relevance if the matter goes to the high court.
"I think that Justice [Anthony M.] Kennedy wants very much to be on the right side of history, and an opinion poll like this could matter in his thinking of the issue. I don't want to overstate the effect, but I think it could subtly affect Kennedy, and everyone believes that Kennedy is likely to be the swing vote on this issue."
Some gay rights advocates have been pondering whether to ask voters to repeal Proposition 8 in next year's election, citing the encouraging shift in public opinion. But many prefer to let the litigation over Proposition 8 and other gay marriage restrictions make their way through the federal courts so the justices in Washington can make a definitive ruling that would settle the matter nationwide.