Wednesday, April 29, 2015

Political Science Resources on the Supreme Court's Same-Sex Marriage Cases or Ten Things You Should Read to Understand the Supreme Court’s Same-Sex Marriage Cases

As we head toward the Supreme Court’s decision in the same-sex marriages cases consolidated in Obergefell v. Hodges later this spring, here are some links to recent work in political science on the Supreme Court and the political consequences of its decisions.

“Trying to Get What You Want: Heresthetical Maneuvering and U.S. Supreme Court Decision Making.”
by Ryan C. Black, Rachel A. Schutte, and Timothy R. Johnson
Political Research Quarterly (2013)

Abstract: Riker famously theorized that political actors faced with suboptimal outcomes might be able to garner a more desirable one by adding issues to the agenda. To date, limited support for Riker’s theory of heresthetics exists, primarily consisting of case studies and anecdotal evidence. We offer a systematic analysis of heresthetical maneuvers in the context of Supreme Court decision making. We argue justices who oppose a potential case outcome may add alternative issues to the record in an effort to restructure the terms of debate. Data from justices’ behavior during oral argument support Riker’s theory.

“The Legitimacy of the U.S. Supreme Court in a Polarized Polity”
by James L. Gibson
Journal of Empirical Legal Studies (2007)

Abstract: Conventional political science wisdom holds that contemporary American politics is characterized by deep and profound partisan and ideological divisions. Unanswered is the question of whether those divisions have spilled over into threats to the legitimacy of American political institutions, such as the U.S. Supreme Court. Since the Court is often intimately involved in making policy in many issue areas that divide Americans—including the contested 2000 presidential election—it is reasonable to hypothesize that loyalty toward the institution depends on policy and/or ideological agreement and partisanship. Using data stretching from 1987 through 2005, the analysis reveals that Court support among the American people has not declined, nor is it connected to partisan and ideological identifications. Instead, support is embedded within a larger set of relatively stable democratic values. Institutional legitimacy may not be obdurate, but it does not seem to be caught up in the divisiveness that characterizes so much of American politics—at least not at present.

Abstract: Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in “vertical” cases (those involving criminal and civil liability) than in “lateral” cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases—those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices' fear of nonimplementation and is, therefore, dependent on institutional context.

“The Supreme Court’s Many Median Justices”
by Benjamin E. Lauderdale and Tom S. Clark

American Political Science Review (2012)

Abstract: One-dimensional spatial models have come to inform much theorizing and research on the U.S. Supreme Court. However, we argue that judicial preferences vary considerably across areas of the law, and that limitations in our ability to measure those preferences have constrained the set of questions scholars pursue. We introduce a new approach, which makes use of information about substantive similarity among cases, to estimate judicial preferences that vary across substantive legal issues and over time. We show that a model allowing preferences to vary over substantive issues as well as over time is a significantly better predictor of judicial behavior than one that only allows preferences to vary over time. We find that judicial preferences are not reducible to simple left-right ideology and, as a consequence, there is substantial variation in the identity of the median justice across areas of the law during all periods of the modern court. These results suggest a need to reconsider empirical and theoretical research that hinges on the existence of a single pivotal median justice.

“Court Decisions and Trends in Support for Same-Sex Marriage”
by Patrick Egan and Nathan Persily
The Polling Report (2009)

Abstract: 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.

“The Swing Justice”
by Peter K. Enns and Patrick C. Wohlfarth
Journal of Politics (2013)

Abstract: In the Supreme Court’s most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This article makes two theoretical contributions to the study of the swing justice and this justice’s resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court’s most closely divided decisions, which are typically thought to reflect the Court’s most ideologically driven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public’s preferences, and case-specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor—whether on the Supreme Court or any other decision-making body—can lead to incorrect conclusions about the determinants of policy outputs.

“Justices and Legal Clarity: Analyzing the Complexity of U.S. Supreme Court Opinions”
by Ryan J. Owens and Justin P. Wedeking
Law and Society Review (2011)

Abstract: Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions, while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity in majority or concurring opinions. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

“Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases”
by James W. Stoutenborough, Donald P. Haider-Markel, and Mahalley D. Allen
Political Research Quarterly (2006)

Abstract: The theoretical and empirical debate over the ability of the U.S. Supreme Court to influence public opinion through its decisions is far from settled. Scholars have examined the question using a variety of theoretical perspectives and empirical evidence, but there is no theoretical consensus, nor are the empirical studies without methodological weaknesses. We enter this debate in an attempt to bring some clarity to the theoretical approaches, overcome some of the methodological shortcomings, and bring a yet unstudied issue area, Court decisions on gay civil rights, under scrutiny. We argue that the ability of Court decisions to influence public opinion is a function of the salience of the issue, the political context, and case specific factors at the aggregate level. At the individual level these factors are also relevant, but citizen characteristics must also be taken into consideration. Our analysis of aggregate level and individual level opinion does indeed suggest that Court decisions can influence public opinion. However, the ability of Court decisions to influence public opinion is conditional. Our findings lend support to the legitimation hypothesis and the structural effects model. We conclude with a discussion of the implications of our findings and suggestions for future research.

“Backlash and Legitimation: Macro Political Responses to Supreme Court Decisions”
by Joseph Daniel Ura
American Journal of Political Science (2014)

Abstract: This article is a first attempt to develop and assess the competing predictions of the thermostatic model of public opinion and legitimation theory for the responses of public mood to Supreme Court decisions. While the thermostatic model predicts a negative relationship between the ideological direction of Supreme Court decisions and changes in public mood, legitimation theory predicts that changes in mood should be positively associated with the ideological content of the Court's actions. I assess these rival expectations by modeling the dynamic relationship between mood and cumulative judicial liberalism. The model estimates indicate a complex interaction between the Court and the mass public characterized by short-term backlash against Supreme Court decisions in mood followed by long-run movement toward the ideological positions taken by the Court. The results emphasize the legitimacy of the Court in American politics and point to a unique role for the Court in shaping public opinion.

“The Supreme Court and Issue Attention: The Case of Homosexuality”
by Joseph Daniel Ura
Political Communication (2009)

Abstract: Previous studies have shown that a small number of Supreme Court decisions that “rearrange[d] the … distribution of political benefits” have drawn the media's attention to the underlying issues involved in those cases. This article provides an additional test of that empirical claim, examining the effects of the Supreme Court's gay rights cases on media coverage of homosexuality from 1990 to 2005. The data indicate that Supreme Court decisions that expanded the scope of gay rights increased coverage of homosexuality in both The New York Times and USA Today, while cases that affirmed the existing scope of gay rights had no such effect.

Monday, December 15, 2014

Income, Turnout, and Inequality

The London School of Economics and Political Science's USAPP blog today features a post by Lucy Barnes explaining that higher voter turnout in the United States would be unlikely to change redistributive policies in the American states. She writes:
In recent research, I have looked at differences in government spending, and spending targeted towards the poor, across the American states. This also allows for detailed investigation of the income mechanisms involved, as the Current Population Survey provides data, representative at the state level, on both income and (reported) voter participation. From this individual-level data I constructed measures of the income of the median voter for every state-year from 1978 to 2002. In considering the relationship between median voter income, spending, and the typical aggregate measures of turnout and inequality, we can investigate whether the mechanisms purported to explain the macro-level relationships (that higher inequality and turnout drive higher spending).

First, does the income of the median voter matter for the level of government spending? I find little evidence that it does. Or rather, there is some evidence of a statistically discernible effect, but its substantive size is very small. For a thousand dollar increase in the gap between average income and the income of the median voter, annual public welfare spending per capita increases by $6! Total government spending declines with the decisive voter’s income shortfall, but again the size of these effects is tiny– around $40 for a $1000 change. This small effect size, more than the statistical insignificance of the effects, indicates that any impact of the income of the decisive voter on policy outcomes is limited. Second, if the income of voters as a whole, which depends on inequality and who turns out to vote, is the mechanism by which these factors affect spending, we should see the effects of these aggregate-level variables reduced once the direct measure is included as a predictor in the statistical model. I find no evidence that this is the case, either.
Dr. Barnes attributes the limited impact of turnout on policy outcomes to Americans' abysmal turnout rates in state elections. She argues that so many low-income voters abstain, even in high turnout states, that "the necessary relationship between higher turnout and greater equality in turnout may no longer hold." That seems plausible, but I would also add that there is some evidence showing that lower-income Americans and higher-income Americans tend to have very similar policy preferences and, as a consequence, that biases in voter turnout related to income may not produce significant bias in the policy preferences of the electorate.

Saturday, December 6, 2014

Randy Balko on Eric Gardner

Eric Gardner's death and a New York City grand jury's decision not to indict the police office who caused his death by placing him a choke hold during an arrest for selling loose cigarettes demand serious reflection on the state of race relations and law enforcement. Randy Balko's thoughts on these matters are well worth your time. Among other things, Balko points out how the proliferation of regulation on our daily lives creates a opportunities for violent confrontations between police and civilians, especially in minority communities:
Every law, no matter how seemingly innocuous, is enforced with the threat of violence: If you fail to follow it, the state is saying it reserves the right to use violence to force you to comply and/or force you to submit to a penalty for violating the law. Every law passed also creates more opportunities for interaction with police officers, the people entrusted to use the violence necessary to enforce the laws. How a proposed law will be enforced, and potentially abused, ought to be considered in addition to the content of the law itself....[Moreover, l]ow-level offenses are a tool police sometimes use to do sweeps for outstanding warrants, or as part of a “broken windows” strategy of law enforcement. These are tactics overwhelmingly deployed on low-income and minority communities.
Again, the whole thing is worth your time.

Wednesday, July 10, 2013

No, Indiana Did Not Just Make It a Crime for Same Sex Couples to Seek Marriage Licenses

News that Indiana has just made it a crime for same-sex couples to apply for a marriage license has started to creep into my Twitter feed. The National Journal's website, for example, claims:
Lawmakers in the Hoosier State have updated a 1997 law that makes it a felony to falsify information on marriage license. So, any couple of the same sex filling out those forms would automatically violate the law since there are only sections for one male and one female.

The law now states that it is a Level 6 felony, punishable by up to 18 months in prison and a fine of $10,000. The old law had a punishment of up to three years in prison.
This is a really misleading way to frame what's happened in Indiana.

This year, Indiana updated its entire criminal code criminal code, moving from a four-tiered system of felonies to a six-tiered system. It has been a Class D felony in Indiana since 1997 to submit false information on an application for a marriage license. Class D felonies are punishable by six months to three years in prison and fines up to ten thousand dollars. After the revised criminal code goes into effect next year, submitting a false application for a marriage license will now be a Level 6 felony, the lowest tier. Level 6 felonies are punishable by up to eighteen months in prison and fines of up to ten thousand dollars.

Indiana has not updated or amended its 1997 law forbidding criminalizing false marriage applications. This law may affect same-sex couples since Indiana's marriage application includes marked spaces for a single male applicant and a single female applicant. So, a same-sex couple would have to knowingly "misrepresent" the gender of on or the other applicants in order to submit the form. Doing so might theoretically trigger the state's license falsification law, though there are, as yet, no reports of the law being applied to same-sex couples seeking to be married in Indiana. Also, it is not clear that the law could be applied to same sex couples submitting marriage applications under the terms of the First Amendment.

I do not mean to let Indiana off the hook. The state is deeply hostile to same sex marriage. Marriage has been defined by law as a union of one man and one woman only in the state since 2004, and the state legislature is currently considering action to similarly define marriage in the state constitution. It would not surprise me to learn that the 1997 marriage application falsification act was somehow aimed at forestalling same-sex marriage, but I can't find evidence either way on that issue this morning.

The point is that there is absolutely nothing new here, except Indiana's revised criminal code, which is, by most accounts, a sensible set of reforms that, among other things, makes it easier for minor crimes to be expunged from individual records and increases protections against employment discrimination for ex-convicts.

Friday, January 25, 2013

The Supreme Court and Same-Sex Marriage: Will the Court "Split the Baby"?

The issue of same-sex marriage will arrive at the United States Supreme Court this spring in a pair high profile cases.

The first, Hollingsworth v. Perry, considers the constitutionality of California's Proposition 8, a 2008 ballot initiative which amended California's constitution to prohibit same-sex marriage, effectively over-ruling a state Supreme Court decision which held that California's constitution required allowing same-sex couple to marry along with opposite-sex couples. On Tuesday, a group of Californians who support Proposition 8 filed their brief on the merits, asking the Supreme Court to reverse the 9th Circuit Court of Appeals's decision invalidating the voter-approved measure. The case will be argued on March 23.

The second, United States v. Windsor, deals with the constitutionality of the part the federal Defense of Marriage Act, enacted in 1996, that defines marriage in federal law as "a legal union between one man and one woman as husband and wife." Among other things, the law prevents the federal government from recognizing same-sex marriages that are valid under state law. This prohibits spouses in these relationships from taking advantage of various federal programs and benefits available to opposite-sex spouses. For example, Edie Windsor, the respondent in the pending Supreme Court action, was required to pay over three hundred thousand dollars in federal taxes on her deceased wife's estate which would not have been due had the federal government recognized their marriage, which was valid in New York state, where Windsor resides. The House of Representatives, which will defend the constitutionality of the law before the Supreme Court, also filed its merits brief on Tuesday, and the case will be argued on March 26.

Already, there is some speculation that the Supreme Court will "split the baby" on the issue of same-sex marriage, invalidating the federal definition of marriage enacted by the Defense of Marriage Act (DOMA) and either refusing to decide the Proposition 8 case (perhaps by finding that the initiative's supporters don't have standing to defend the law) or reversing the Ninth Circuit's decision on some narrow grounds. A pair of decisions like this would provide substantial benefits to married same-sex couples under federal law, but leave the fundamental issue of marriage equality an open question among the states.

This is a certain appeal to predicting this kind of "compromise" outcome. There is a kind of cowardly strategic impulse that striking DOMA and dodging Proposition 8 enjoys. Though the Court would please neither strong supporters of same-sex marriage nor its strong opponents, it would also avoid a substantial backlash from either camp while letting the marriage issue continue to percolate. (More cynically, predicting a split decision is also a way for prognosticators to hedge their bets should both cases go the same direction.) Most importantly, predicting that the outcome of the marriage cases will together land in some political middle ground falls nicely into line with the heuristic of the Supreme Court as a institution divided between four liberals, four conservatives, and Anthony Kennedy.

Yet, I suspect that such a compromise outcome is unlikely.

First, a majority of the Court's justices probably favor extending the constitutional right to marry to same sex couples. The four members of the Court's liberal wing---Justices Breyer, Ginsburg, Kaga, and Sotomayor---almost certainly support marriage equality. It is likely that Justice Kennedy shares this sentiment and, I think, would be willing to join a majority for marriage equality.

Though it is tempting to think of the Court's "swing voter," Justice Anthony Kennedy, as a moderate who might like to stake out a compromise position on same-sex marriage, I don't think that's right. As Jeffrey Toobin has explained it, Kennedy is "not a moderate but an extremist—of varied enthusiasms." Recall, for example, that Kennedy took the lead among the Court's conservative justices against the Affordable Care Act. Had Chief Justice Roberts not gotten cold feet, Justice Kennedy's dissent in National Federation of Independent Business v. Sebelius would have been a majority opinion striking down President Obama's health care reform law in its entirety on Commerce Clause grounds.

More to the point here, Kennedy not only joined the majority in two of the Court's most important pro-gay rights cases, Romer v. Evans (which invalidated an amendment to Colorado's constitution that essentially prohibited the state or local governments from including homosexuals as a protected class in antidiscrimination laws) and Lawrence v. Texas (which invalidated state laws prohibiting consensual, private sexual activity, including homosexual sodomy), he wrote the majority opinion.

In each case, Kennedy wrote about gay rights broadly in terms that connected homosexuals' claims on equality and liberty to fundamental constitutional rights. Indeed, Kennedy's opinions make strong connections between the struggle for gay rights and previous civil rights movements as well as between the right to sexual liberty and the right to form relationships and marry. With apologies for their length, these passages from Romer and Lawrence make Kennedy's convictions about gay rights and his legal thinking on Equal Protection and privacy issues quite clear.

From Romer:
[Colorado's] Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision."

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws is a pledge of the protection of equal laws."...

Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not. 

The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ."

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed. [Citations omitted.]
From Lawrence:
The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice....

In Planned Parenthood of Southeastern Pa. v. Casey, the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. [Citations omitted.]
Additionally, upending DOMA while sidestepping or preserving Proposition 8 is logically inconsistent. The provisions of the two enactments under review are substantively identical. Both restrict homosexual couples' access to the institution of marriage, and supporters of each enactment allege much the same state interest in preserving marriage as an opposite-sex institution. The defenders of Proposition 8 argue that preserving a traditional definition of marriage advances the government's interest in "regulat[ing] sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society." Likewise, DOMA's supporters argue that it furthers the legitimate government interest in encouraging "heterosexual relationships, with their unique tendency to produce unintended offspring, to be channeled into an institution designed to facilitate the raising of such offspring."

Legally, if the interest at stake in DOMA is not sufficiently "rational" or if a majority of the justices view it as a pretense to justify a policy motivated by animus toward homosexuals, it should fall. If DOMA falls, Proposition 8 shares its fatal flaw. Sure, the Court could side-step the issue for the time being by finding that the group defending Proposition 8 does not have standing to do so in federal court, but doing so would create substantial policy problems and run against strong currents in public opinion.

In terms of policy, ending DOMA and leaving marriage equality up to the states alone is nothing but trouble. It would put the Supreme Court in the position of positively leaving same-sex couples living in different states with different access to the "fundamental...freedom of choice to marry," and would start an avalanche of federal claims related to same-sex couples who legally marry in one state and ultimately move to another state which does not recognize same-sex unions. Ending DOMA would ultimately be the beginning of the final countdown to national marriage equality whatever the resolution of Hollingsworth might be in this term of the Court.

In terms of public opinion, most polls indicate that a majority of Americans now favor same-sex marriage outright. More importantly, support for same-sex marriage is rapidly growing. For example, in 2004, an NBC News poll found that 61% of Americans opposed "allowing gay and lesbian couples to enter into same-sex marriages," with 51% "strongly" opposing same-sex marriages. Only 30% of Americans supported marriage equality. In late 2012, another NBC News poll (asking the same question), found that 51% of Americans now support allowing same-sex couples to marry with only 40% expressing opposition. In the course of eight years, nearly a fifth of the American people swung from opposing same-sex marriage to supporting it, and it is reasonable to suspect that support for marriage equality will continue to grow in the future.

By acting strongly in favor of same-sex marriage---that is, by ending DOMA and invalidating Proposition 8 and other similar state laws that restrict marriage to opposite-sex couples a majority of the Court's members would avoid creating a hash out of our de facto national marriage policy, align itself with a solid and growing majority of Americans who support marriage equality, and get the policy outcome they want. Of course, the Court risks as backlash from a dedicated minority who oppose same-sex marriage, but given the current configuration of power in Congress and the White House, there is effectively no way for this minority to effectively retaliate or undermine the Court. A majority of the Court's justices are therefore substantially unconstrained, either by public opinion or by coordinate branches of government, from pursuing an ambitious agenda of marriage equality if they so choose.