Abstract
The United States Supreme Court, in its 2015 Obergefell v. Hodges decision, declared a constitutional right to same-sex marriage (SSM). With Republicans now controlling the Congress and presidency, and with value-traditionalists and ‘strict’ constitutionalists influencing the party’s legislative agenda and judicial nominees, Obergefell’s future and the contours of SSM rights are uncertain. Proponents assume the decision will delegitimate opponents, just as Loving v. Virginia (1967) accelerated the delegitimation of racial segregationists. SSM opponents counter with the Court’s 1973 Roe v. Wade ruling and argue that, like Roe, Obergefell undermines the democratic process, which is better suited to resolve a highly-charged moral dispute. Like Roe, Obergefell will not resolve the debate but, instead, trigger a durable opposition. We add a third possible path, drawing on the evolving public discourse on polygamy since the Supreme Court upheld prohibitions in Reynolds v. United States (1878). The politics of polygamy shows that, if SSM opponents are delegitimated, they may reemerge as legitimate participants in the public sphere. These paths offer insights into uncertainties, contingencies, and predictions regarding the durability of SSM resistance and other oppositional movements. They also lead to revisionist interpretations of the effect on public discourse flowing from these three seminal court decisions. The politics of interracial marriage (after Loving) shunned the losing political faction from the public forum, while those of abortion (after Roe), and, recently, polygamy, illustrate a more vibrant, pluralist model of deliberation. Whether SSM opponents will mimic a Roe model, or follow the trajectory of Loving or Reynolds, is now the question.
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Notes
Elites have “disproportionate access to or control over a social resource” and “their decisions and actions influence and affect vast numbers of people.” Elites can be broadly categorized as economic, political, social (networks), cultural, and knowledge, with more powerful elites occupying multiple domains. The more resources that an elite can access, the more powerful is the elite (Khan 2011).
According to Eskridge (2013), “normal politics” occurs when participants (1) are motivated by the tangible consequences of various policy options, (2) exhibit medium-to-low emotional intensity, and (3) are focused relatively more on facts and falsifiable predictions. This differs from issues where participants (1) are motivated by intangible or symbolic consequences of various policy options, (2) exhibit relatively higher emotional intensity, and (3) are focused relatively less on facts and falsifiable predictions. More extreme emotions can produce the “politics of disgust” where “primordial issues . . . are deeply tied to people’s feelings of disgust and contagion.”
In November 2015, the California Ethics Panel published an advisory statement permitting judges to remain in the Boy Scouts if the troop allows gay and lesbian leaders or if it excludes them based on religious values “of legitimate common interest to the troop members” (Egelko 2015).
Egan (2015) predicted a consensus favoring the right to SSM, similar to that on interracial marriage, rather than a divide similar to that over abortion. He cited 2014 Pew Research polling: about one year before the Obergefell decision, 52% favored a right to SSM, notably higher than the 44% favoring a right to interracial marriage when Loving was decided (1967) and slightly higher than the 48% supporting a right to elective abortions when Roe v. Wade was decided (1973). Egan’s prediction relies on one variable – public support – while our analysis of oppositional endurance considers four factors. Public support for the right to interracial marriage may have been relatively low in 1968, but intellectual elites, national media, national politicians, and other institutions, such as the Catholic Church, either supported the right or were quickly moving to support it, closing the space for legitimate opposition.
Chief Justice John Roberts articulated this view in his dissent in Obergefell v. Hodges (2015, 2625):
This deliberative process is making people take seriously questions that they may not have even regarded as questions before.
When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again.
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Phillips, J., Yi, J. Debating Same-Sex Marriage: Lessons from Loving, Roe, and Reynolds . Soc 55, 25–34 (2018). https://doi.org/10.1007/s12115-017-0208-8
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DOI: https://doi.org/10.1007/s12115-017-0208-8