Stateways v. Folkways; Alito v. Roberts

June 27, 2015
Posted by Jay Livingston

“Stateways cannot change folkways.”* Or can they? That’s an empirical question, and it figures briefly in two of the dissents in the Supreme Court’s gay-marriage decision yesterday.

Chief Justice Roberts (Dread Justice Roberts – except for an occasional Obamacare decision) and Justice Alito both dissented. Their arguments were mostly about the Constitution. But both also made stateways/folkways predictions about the effects the decision would have on public opinion.

Justice Roberts went sociologist Sumner one better. The law would change public opinion – but in the opposite direction.

Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view.   That ends today.   Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.  Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.              *        *        *        * Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs. [emphasis added]

Alito, on the other hand, thinks the Court’s decision will make gay marriage so widely accepted that those who oppose marriage equality will live in fear, able to “whisper their thoughts” only in the safe rooms of their houses.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.

Once you get past the whiny tone (poor little Sam Alito: “My ideas will be won’t be popular any more and people will make fun of me”), you have an empirical prediction. Those who “cling to old beliefs” will be persecuted. You know, like early Christians (or contemporary Christians if you believe Bill O’Reilly). 

For one of his predictions you have to define “marginalization” and “vilification” and get measures of them before and after yesterday’s decision — a difficult task, maybe an impossible one, though the question remains an empirical one. It will be easier to operationalize and get data on how often America’s governments, employers, and schools mistreat the anti-gay-marriage thought-whisperers.

If previous SCOTUS decisions are a guide, you have to lean towards Alito, at least as concerns public opinion. Patrick J. Egan at The Monkey Cage (here) created this chart showing trends in public opinion following decisions on interracial marriage and abortion. He also included opinion on marriage equality in the years leading up to yesterday’s decision.

In 1967, the year of the  Loving decision, supporters of interracial marriage were in the minority.** By the time of that decision, support had risen, and it continued to rise. The Court had, to paraphrase Roberts, “stolen the issue from the people,” But that decision did not “cast a cloud over interracial marriage,” nor did it “make a dramatic social change that much more difficult to accept.”  Much the opposite. But Roe v. Wade seems to have had little impact on public opinion.

Obergefell looks more like Loving than like Roe. Support for gay marriage has been on the increase and has already become the majority view. More important, the pro/anti differences are generational, as was the case with interracial marriage. The generations coming in are more liberal on this issue than are the generations exiting the population. Opposition to marriage equality will continue to fade, not because of persecution or because of “government, employers, and schools,” but because of heart disease, cancer, and respiratory illness.

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* What Sumner actually said was, “legislation cannot make mores.”* But he said it in a book called Folkways (1906), the meaning is nearly identical, and it sounds better than what he really said. For more on inaccurate quotes, see James Grossman’s blog post “Did They Really Say That?” (here).

 Grossman adds, “if you are of a mind to check ‘legislation cannot make mores,’ please note that if you do it through Google Books you are likely to be asked whether you really mean ‘legislation cannot make smores.’”

** The chart shows GSS data on “oppose ban” – 44%.  A Gallup poll from roughly the same time asking about “approval” for interracial marriage showed only about 20% approving.