Note well: It’s not 52/43 in favor of legalizing gay marriage. It’s 52/43 in favor of requiring, as a matter of federal statute, that gay marriage be permitted even in states where a majority oppose it. In other words, you’ve got majority support here for the anti-DOMA. Something to bear in mind come 2016, when inevitably some socially conservative GOP candidate will start talking about a Federal Marriage Amendment again. At this point, the public’s likelier to support an FMA that makes gay marriage legal as a matter of constitutional law than an FMA that outlaws it.
The most arresting data point here, for my money, is that Catholic support for a gay-marriage mandate is running at 60 percent, considerably higher than support among U.S. adults generally. I don’t know how Pope Francis’s comments this morning will play with Catholics abroad but they should be just fine here.
Any reason to question the topline 52/43 number? Actually, yes. When Gallup polled the question of gay marriage more generally back in May (i.e. asking whether SSM should be legal, not whether there should be a federal statute requiring it in all 50 states), they got a nearly identical 53/45 split. I would have guessed that reframing that question in terms of whether federal law should require its legalization would have brought out the federalist in some gay-marriage supporters and knocked the overall level of support below 50 percent. Not so. There’s barely any fall-off when you phrase it in terms of a federal mandate. That makes me think either (a) there are very, very few sticklers for federalism on this subject in the population or (b) support for SSM actually jumped several points between May and today (maybe to the high 50s) and thus the 52 percent support we’re seeing for a mandate really does represent a considerable fall-off. That’s not implausible, actually, given that we had a major Supreme Court decision on DOMA and Prop 8 in the interim. Maybe support for gay marriage spiked after SCOTUS struck down part of DOMA and that’s why even the prospect of a federal mandate leaves support above 50 percent.
Would a federal statute imposing gay marriage would sit better or worse with social conservatives than a Supreme Court ruling imposing it as a matter of equal protection? (Never mind the fact for this thought experiment that Congress’s constitutional authority to legislate on marriage is dubious.) Presumably it’d be slightly better: A statute can be repealed and/or its supporters replaced whereas a SCOTUS ruling requires a change in Court membership, which can take decades. And a statute would have some democratic legitimacy as an expression of the will of the national majority even if it’s viewed as a usurpation of the will of the state majority. Lefty blogger Digby phrases it this way: It’s one thing to say that legalizing gay marriage is a matter of majority will versus minority rights, but what if the (national) majority opposed to it is now a minority itself? Then it’s minority rule versus minority rights happen to be supported by the (national) majority. Regardless, the real significance of this, I think, is that it’ll embolden Anthony Kennedy and the Court’s liberals the next time the issue comes before them to mandate gay marriage nationally under the Equal Protection Clause. Ginsburg has worried in the past that the Court, as it did in Roe, shouldn’t be quick to take a hot-button social issue out of the public’s hands lest it embitter and entrench the opposition. The lesson for her and Kennedy in this poll is that most of the public would be okay with risking that. Not a deciding factor, but a data point the next time they rule.