One of the debates about the two same sex marriage cases being argued in Washington is whether U-S Supreme Court decisions should lag behind public opinion, reflect current views, or lead the way and wait for the public to catch up.
Ten years ago, the courts in Canada appeared to give public opinion a nudge into the future.
As recently as 1999, the Liberal government of the day re-affirmed the definition of marriage as a union between one man and one woman “to the exclusion of all others”. While advocates for same sex marriage opposed that definition, most Canadians accepted it. There was no broad public backlash.
In 2003 the Ontario Court of Appeal and other courts deemed that definition unconstitutional. The Federal Liberals did an about face and brought in a law recognizing same sex marriage. Again there was almost no backlash.
It seems Canadians had long accepted the traditional definition of marriage almost out of habit. When the courts said it wasn’t fair to deny gays and lesbians the same rights and benefits, Canadians’ innate sense of fairness reconsidered the matter and virtually overnight public opinion tipped from backing marriage between “a man and a woman” to between “two persons”. Even Conservatives saw the writing on the wall. After a House of Commons vote to revive the traditional definition failed Prime Minister Stephen Harper threw in the towel, stating “I don’t see re-opening this issue in the future.” That’s how quickly things changed – from a Liberal government in 1999 re-affirming traditional marriage to a Conservative government in 2006 no longer opposing same sex marriage.
Today a similar tipping point has been reached in the United States. A slim majority of Americans now support same sex marriage. The reason it’s not seen as a temporary blip is that polls suggest that among young people, 30 and under, about 80-percent support same sex marriage. It’s suddenly clear to Americans – as it was to Mr. Harper — that support for gay marriage will, eventually, be overwhelming.
But while a federal law in Canada settled the matter for the entire country, and quickly, the U-S Supreme Court may or may not make a sweeping decision that affects all 50 states. Some critics suggest that 40 years ago the high court got out ahead of the public debate over abortion. On same sex marriage the court may decide to give more time and leeway for states to work through Americans’ shifting views on the subject. People in Massachusetts and Mississippi aren’t likely to see eye to eye on this for some time.
