Live by Public Opinion, Die by Public Opinion

Over at Talking Points Memo, Brendan James notices National Review’s novel take on this week’s gay marriage rulings: they’re reminiscent of Dred Scott! Proceeding boldly against the old opinion-writing adage that it is rarely wise to compare things to slavery, Matthew Franck proclaims:

Like Dred Scott, decisions for same-sex marriage rely on a false anthropology that drives a political decision made by judges. In Dred Scott it was the false idea that some human beings can own other human beings, and that a democratic people cannot say otherwise. In the same-sex marriage rulings it is the false idea that men can marry men, and women can marry women, and that democratic peoples cannot say otherwise.

If it’s possible to salvage an instructive point from the above, it’s this: leaning on “democratic peoples” is a dangerous game. People change their minds, and on no major social issues have minds changed as quickly as gay marriage. Earlier this year, Gallup found that nationwide support for gay marriage had hit an all-time high of 55 percent. Similarly, a recent Washington Post-ABC poll recorded an all-time high of 59 percent support. The Post-ABC poll even found a 53 percent majority in favor in the 33 states that (at the time) banned gay marriage. Gallup, similarly, broke down its results by region and found majority support in every part of the country except the South, where support still reached 48 percent. Even there, however, the Post’s poll recorded 50 percent support and only 42 percent opposition. Or take the numbers from the five states affected by this week’s ruling, including Virginia (50 percent in favor of same-sex marriage, 42 percent opposed), Wisconsin (55-37), and Utah (48-48). Public opinion has been slower to change in Indiana and especially Oklahoma, but even in those states it’s not difficult to imagine a pro-same sex marriage majority within the next decade or two. The demos, in other words, has a clearly emerging preference, and reliance on public opinion in the waning holdout states is, at best, a short-term strategy.

I imagine that social conservatives experience this as a dizzying reversal, because for so long public opinion was a stable foundation for the anti-marriage equality argument. That’s why complaints about antidemocratic judges were so effective, and why they’re so difficult to abandon even now that facts on the ground have changed. Yet facts have changed, and so different arguments are needed. One possible alternative is Franck’s insistence that same-sex marriages are definitionally absurd—that they’re a “false anthropology” being foisted on “democratic peoples” who “cannot say otherwise.” If you set aside, for a moment the second part of the argument—the complaint on behalf of democratic peoples—it becomes clear that in reality, Franck’s appeal is by no means straightforwardly democratic. The notion of a “false anthropology,” such as one that could justify slavery, implies that some worldviews are simply wrong, regardless of what anyone thinks about them. This is quite different from the complaint that judges are ignoring public opinion or subverting the normal course of democratic politics. An appeal to democracy is by no means the same as an appeal to truth. Which part of the argument is doing the work?

I’m tempted to say that, when the rhetoric is stripped away, it’s the latter. Gay marriage opponents likely regard democratic politics and public opinion with some wariness—and in fact, that may have always been the case. The proof is in their actions, albeit in a strange way. There’s no denying that social conservatives took their argument to the voters in 2004, when their successful pushes for 11 anti-gay state constitutional amendments seemed like a major triumph. But in retrospect, that push increasingly looks like a last-ditch attempt to stop an emerging new consensus in its tracks. The right wanted to shut the door on gay marriage and throw away the key. This amounts to freezing public opinion in place—shutting off the possibilities heralded by a new consensus. At some level, that reveals a deep uneasiness with democratic politics, even if (at the time) it was easy to use democratic-populist rhetoric to champion traditional marriage. That populist rhetoric, in turn, provided conservatives with a potent talking point to use against those pesky activist judges who kept undermining the voice of the people by insisting on a right to marry. Suddenly, however, as public opinion shifted, the right’s favorite talking point turned against it. Now, their task is harder—which leads not only to the rise of silly historical comparisons, but to a subtle reliance on arguments far less dependent on public opinion.