Legal Commentary

An Interesting VC Reader Poll Result on Same-Sex Marriage

By Orin Kerr

Among the interesting results of the VC readership polls on same-sex marriage, I was particularly intrigued by the answers to when the Constitution began to require gay marriage. This question was only supposed to be answered by those who believe that the Constitution presently requires state recognition of same-sex marriage. 526 readers responded so far. 

On to the results. First, 24% of readers who responded believe that the Constitution began to require states to recognize same-sex marriage before or during the 1700s. I assume this crowd is mostly thinking that state recognition of same-sex marriage is a natural-law right, or perhaps just more generally that it goes back to the Founding era.

Next, 29% of readers who responded believe that the Constitution began to require states to recognize same-sex marriage in the 1800s. This was the most popular answer. The 14th Amendment went into effect in 1868; I gather that is the date most readers in this group have in mind. In contrast, only 3% of readers picked from 1900 to 1954 as the key date.

After that, 13% of readers who responded believe that the Constitution began to require states to recognize same-sex marriage in the Warren Court era from 1954?1969. I gather that many of the readers in this group are focused on Loving v. Virginia in 1965 as a key precedent. In contrast, only 6% of readers who responded thought that the Constitution began recognizing the right in the Burger Court years, from 1969 to 1986.

Moving on, 16% of readers who responded believe that the Constitution began to require states to recognize same-sex marriage in the Rehnquist Court era from 1986 to 2005. This period included Romer v. Evans and Lawrence v. Texas, and I would guess that most readers that picked this window would focus on those cases as the key precedents that helped create the right.

Finally, 10% of readers who responded believe that the Constitution began to require states to recognize same-sex marriage only in the last five years. I?m not sure, but I would guess that at least some readers in this group are focused on the changing social attitudes toward same-sex marriage in the last five years.

Anyway, I realize some readers aren?t interested in public perceptions of the Constitution. And I realize that the polling question will be ambiguous to some, which is inevitable when trying to tease out the wide range of different theories different people may have. But still, I thought the results were pretty interesting.

Full post as published by The Volokh Conspiracy on August 09, 2010 (boomark / email).