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Some Supreme Court Justices worry that a gay marriage ruling will provoke public backlash. They shouldn't be concerned.

- April 30, 2015

An equality flag waves during a demonstration in front of the Supreme Court in Washington, Tuesday, April 28, 2015. ( AP Photo/Jose Luis Magana)
We don’t know how the Supreme Court is going to rule in Obergefell v. Hodges. However, some are already suggesting that the Court should be careful and not go too far too fast, for fear of a backlash or a surge in anti-gay opinion. The reliably liberal Justice Ruth Bader Ginsburg referenced the history of the abortion fight to illustrate this concern. Justice Kennedy seemed to lean toward a go-slow approach when he reflected about the time span between big events in desegregation from the bench during the oral arguments. Others advocate going slow because they are concerned about whether courts should make such momentous decisions. John Bursch, one of the attorneys representing the four states opposing marriage equality, argued that the Court should support the right of the voters to define marriage and Justice Antonin Scalia suggested to Mary Bonauto, one of the plaintiffs’ lawyers, that the Court should leave the issue for the people to decide.
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Arguments based on fears of backlash, or on a demand that the voters should decide, have long been used to discourage judges from favoring rights for traditionally disadvantaged groups. In our research, we look at one crucial form of backlash, examining it as a sharply negative and enduring shift in public opinion. Backlash in response to progress in gay rights might be triggered by the policies implemented by the legislature or the Court, or by non-policy actions like the mere election of members of a traditionally marginalized group. Research on public opinion allows us to address some key questions. Does opinion backlash occur? Must the Court go slow or completely defer to the democratic process for fear of creating an outraged and angry public? In short, does the Court have to choose between democracy on the one hand and liberty and equality on the other?
In a new article for the American Journal of Political Science, we consider the question by examining whether the judiciary, through a Supreme Court ruling, triggers backlash. We conducted online survey experiments using subjects recruited through Amazon Mechanical Turk. We hoped to determine which citizens were most likely to lash back, how backlash might manifest (e.g., changed issue position, increased issue intensity, or both) and whether courts or legislatures are most likely to trigger backlash. We recruited 2,402 respondents over 12 days. After subjects answered some basic demographic and opinion questions, they read a news story that was followed by a variety of questions about their political knowledge and attitudes toward gays and lesbians.
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Each respondent then either read one of three stories about gay rights, or read another story that had nothing to do with gay rights, to provide an experimental “control.” Which story they read was determined by chance. These included a story of gay marriage being legalized by the state court, a story of gay marriage being legalized by the state legislature, a non-policy story about a gay pride parade, and a story about gun control policy. We also identified groups that past research suggests might be more likely to experience backlash — such as Evangelical Christians, individuals who are more likely to be worried about perceived threats, or individuals who believe strongly in social hierarchy, so we could determine if backlash might be more intense among these subgroups. Backlash would be revealed by large (and negative) differences across conditions.
The results were stark. There is no evidence of backlash, either in the whole group, or in sub-groups of Evangelical Christians or hierarchy-favoring conservatives. In case this was just because people weren’t worried enough about the policy changes in Oregon, we set up a second experiment in June 2013, when the U.S. Supreme Court issued opinions on two prominent gay rights cases on the same day: the ruling against Proposition 8 (Hollingsworth v. Perry), which extended marriage equality to California, and the decision that the federal Defense of Marriage Act was unconstitutional (United States v. Windsor). These high profile opinions should have made the expansion of gay rights highly visible, provoking anyone who was prone to a backlash to express it.
Once again, our results are inconsistent with backlash. Despite a highly visible pair of rulings, with policy implications for citizens in every state, and overwhelming media coverage of the rulings, the magnitude of effects is tiny and we find no difference in opinion on gay marriage, intensity of feelings about gay marriage, or warmth of feelings, before versus after the rulings.
Over 50 years after Martin Luther King’s Letter from Birmingham Jail — a response to Alabama clergy who exhorted blacks not to march for equality, and to instead wait for the courts to grant them civil rights — some opposed to the expansion of equal rights urge the courts to go slow. While there might be other forms of backlash, our evidence suggests that opinion backlash — the primary basis for many of these claims—is not a valid reason to go slow. We find no empirical support for the claim that opinion backlash will occur on the issue of gay marriage. The Court need not fear choosing between democracy on the one hand and liberty and equality on the other.
Benjamin G. Bishin is Professor of Political Science at the University of California, Riverside.
Thomas J. Hayes is Assistant Professor of Political Science at the University of Connecticut.
Matthew B. Incantalupo is a PhD candidate in Political Science at Princeton University
Charles Anthony Smith is Associate Professor of Political Science at the University of California, Irvine.