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11 Courts, Social Change, and the Power of Legal Liberalism THIS CHAPTER directly addresses Gerald Rosenberg’s argument that courts are quite ineffective at achieving social change and that minority groups that look to the courts for change will be disappointed. In connection with samesex marriage litigation, he has argued that litigation has had very little effect and has, in fact, led to a strong political reaction against it. Indeed, Rosenberg points out that nearly a decade after the litigation began, no right existed for same-sex couples to marry, and a significant majority of states and the federal government have specifically prohibited such marriages.1 In this chapter, I present evidence that challenges Rosenberg’s claims on U.S. public opinion (as I did with Canadian public opinion), and broadens the view of the actual effects of same-sex marriage litigation by relying on a more constitutive analysis. COURTS, PUBLIC OPINION, AND SOCIAL CHANGE Central to Rosenberg’s claim is the fact that public opinion has not substantially shifted since same-sex marriage litigation began, since, according to polls, in 1996, 27 percent of Americans supported same-sex marriage, and by 2000 this number was 34 percent.2 Rosenberg claims that this change is insignificant, but this fails to account for the socially and culturally embedded nature of the institution of heterosexual marriage. Receptivity to changes in this institution is not as easily reflected in public opinion polls as other, more routine, public policy areas. Viewed from this perspective, an increase of seven percentage points in four years of samesex marriage support can be seen as a significant shift. And Rosenberg is not alone. Richard Posner has written that the U.S. public is staunchly opposed to same-sex marriage and even civil unions by citing one poll.3 Indeed,heassertsthatforfederalcourtstofindinfavorofsame-sexmarriage“inthe face of adamantly opposed public opinion would be seriously undemocratic. . . . It would be moral vanguardism.”4 The story is much more complex, however. First, public support for domestic partnerships and civil unions is higher than for marriage. A 1997 poll in Hawaii indicated that although 70 percent of respondents were opposed to same-sex marriage , only 55 percent were opposed to domestic partnerships.5 The litigation in that state likely influenced public opinion in the direction of relationship equality just as it had influenced some legislators. A Gallup poll in 2001 indicated that 44 percent of respondents nationally favored a civil union–style approach. This was up from 42 percent in 2000.6 In 2002 support rose to 46 percent, and was up to 188 CHAPTER 11 49 percent by 2003.7 An AP poll in 2000 also indicated that the public was split on the domestic partnership issue, with 41 percent in favor and 46 percent opposed. When the question is asked about specific benefits for same-sex partners, majority support emerges: 56 percent of respondents favored inheritance rights, 53 percent favored health insurance coverage, and 50 percent favored Social Security benefits for same-sex partners.8 Polling reflects a still fluid situation when it comes to same-sex marriage and civil unions but with emerging support for relationship equality. In a November 2003 national poll by the Los Angeles Times, 36 percent supported civil unions, 40 percent opposed them, and 24 percent did not know or had not heard enough. The U.S. public appeared to be divided on gay relationship equality, with a segment up for grabs in this poll. The same poll showed the following split on marriage for same-sex couples: 31 percent in support, 55 percent opposed, 14 percent no opinion.9 Thus,oppositiontomarriageisnolongerinthe60to70percentrangethat existed in the mid-1990s. Indeed, opposition in a leading poll declined from 68 percent in 1996 to 55 percent in 2003.10 Even a proposed federal constitutional amendment to ban same-sex marriage garners only 50 to 55 percent support—hardly the supermajority needed for a federal constitutional amendment.11 And support has emerged for relationship equality nationally. In the 2004 national election exit poll, 24 percent of respondents supported same-sex marriage, 35 percent favored civil unions, and only 37 percent favored no legal recognintion for same-sex couples.12 Other polls tell an interesting story. A September 2003 poll asked the following question: “Just your best guess, do you think that allowing two people of the same sex to legally marry will change our society for the better, will it have...

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