Obviously today’s ruling will bring about cries of judicial activism primarily from gay marriage opponents but also for conservative proponents that see judicial overreach. While comparisons to anti-miscegenation laws have been made by gay marriage supporters, I have seen no one actually compare public opinion during the 60s when Loving v. Virgina legalized interracial marriage across the land to gay marriage attitudes now.

This is precisely what I did in a post last year (without the emphasis on the Loving ruling in 1967) which you can click through to see the charts and give TMV more hits. The take away message is clear: in 1968 Gallup found that 73% “disapproved” of interracial marriage with 20% “approving.” By contrast 30% say they support gay marriage and 28% civil unions. The latter in most cases is an issue of marketing and the numbers don’t drop very much if you ask the binary “should homosexuals have their relationships formally recognized by the government” without the break down. Furthermore, you can look at the breakdown by age and see that in every group but the 65+ there are super majorities in favor of legal recognition. I’ll eat my shoes if the court doesn’t take that into account informally while making their decision.

OK so “approval/disapprove” isn’t exactly analogous to whether something should be legal (well in theory, in reality the vast majority of people are in stages 3 and 4 on Kohlberg’s moral development scale so they tend to equate morality with legality) so how does the more appropriate polling question compare? Well by the margin of 52-43, people think that homosexuality is “morally acceptable.” A far cry from 20-73.

Any way you break it down, more people agree that homosexual relationships should be formally recognized by the government than agree on nearly any issue, and the numbers are mind bogglingly in support compared to during Loving v. Virginia. Fellow TMVer Logan Penza has repeatedly said in his posts he thinks that they could be the next Roe v. Wade but there is no polling data to suggest that is the case.

Regardless of legal theory and what is “right” the reality is that the judicial branch has often expanded civil rights to minority groups when it felt there was enough popular support to do it without causing a major backlash. They have recognized that due to the nature of politics there are many issues where there is broad agreement across the spectrum but the law repeatedly goes against that (look at farming subsidies) and civil rights have a special place in legal history with the Justices that expand rights being applauded when history is written.

The only exception is Roe v. Wade but that involves a giant asterisk due to genuine disagreement on the definition of “personal” during pregnancy.