Court Decisions and Trends in Support for Same-Sex Marriage (2009)

Patrick J. Egan (NYU) & Nathaniel Persily (Columbia Law School), The Polling Report, Aug. 17, 2009

The trends in public support for same-sex marriage should interest both those concerned about public attitudes toward gay rights and those with a larger interest in the way court decisions help shape public opinion. The political and legal dynamics of the same-sex marriage debate, as well as the public opinion response, are unique. Nevertheless, analogies to other legal contexts, such as abortion, desegregation and interracial marriage, help define the stakes in this debate and the potential directions in which public opinion may turn.

Our own research, as spelled out in our book Public Opinion and Constitutional Controversy (Oxford 2008), suggests that the public is growing increasingly more amenable to same-sex marriage and that judicial decisions are unlikely to reverse that trend.

When it comes to speculating about the effect of court decisions on public opinion, there are several potential dynamics that researchers attempt to identify. The first, and most prevalent, is stability — the absence of an effect of court decisions on attitudes toward a particular issue. Most court rulings do not involve salient issues understandable to the mass public. Even when they do, the public (or a large share of it) often has fixed opinions and court decisions do little to dislodge them from their preconceived notions.

However, in some cases, opinion can change in response to a court decision. The phenomenon of legitimation occurs when courts lead opinion by issuing a decision that only later gains majority support from the public.

By contrast, backlash results when the public goes in the opposite direction of the court. If, for example, the court establishes a new right, the public might backlash against the exercise of such a right.

Finally (and not mutually exclusive) is the dynamic of polarization. A court decision polarizes the public when it pushes groups to take more extreme positions even if it does not change the overall distribution of support for a particular right or principle. …

Which phenomenon best explains the relationship of court decisions to public opinion concerning same-sex marriage? [cont.]

Support for Legal Recognition of Same-Sex Marriage, 1988-2009 Source for data:

Support for Legal Recognition of Same-Sex Marriage, 1988-2009
Source for data: