Gay marriage has a popular majority in the UK and Ireland in both polls and referenda. Is it that different in the US?
Interpreting old documents is hard, and where there is silence or substantial ambiguity it seems right to err on the side of popular opinion.
7 of 27 EU states have a constitutional ban on same-sex marriage. The EU Human Rights Court has not stepped in to overturn those bans: https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... In 2016, it held unanimously that the European Convention on Human Rights doesn’t protect same-sex marriage. In the EU countries where it has been legalized, that was done by statue.
In the US, those issues are handled through court cases, regardless of where public opinion stands. For example, elective abortions (without health risks or something else) in the second trimester or later is very unpopular in the US and the EU. Only about a quarter of people think it should be generally legal after the first trimester: https://news.gallup.com/poll/235469/trimesters-key-abortion-.... That matches up with the law in most of the EU, where the limit for elective abortions is 10-14 weeks. (As I recall, the UK is the exception at 24 weeks.)
The US constitution doesn’t say anything about abortion, or anything that could really be construed to be about abortion, but the Supreme Court has interpreted it to protect abortion up to viability, usually 22-24 weeks. So the Supreme Court has interpreted the constitution, which says nothing about abortion, to create an abortion right so broad France or Germany’s or Denmark’s abortion laws would be invalid in the US.
The topping on that cake is that the US is that the US is the most religious developed country in the world, more so than countries like Poland.
Which is why Supreme Court appointments get so heated here.
Gay marriage had a popular majority in favour before it became legal (though obviously a popular majority doesn’t necessarily mean much in the US system.) Compare this to interracial marriage which was not approved of by the majority of the population for many years after it was made fully legal across the country .
Most cases that reach the US Supreme Court aren't about whether X is good or bad (let's say X is abortion or gay marriage) but whether X is so good that the Federal government should compel states to allow it, or so bad that it should compel states to forbid it.
> Most cases that reach the US Supreme Court aren’t about whether X is good or bad (let’s say X is abortion or gay marriage) but whether X is so good that the Federal government should compel states to allow it, or so bad that it should compel states to forbid it.
No, most of them aren’t about good or bad, which is a policy judgement generally reserved for the political branches, at all.
Its about whether X or Y is consistent with the law (including, as the paramount law, the Constitution of the United States.)
There's a straightforward argument for gay marriage based on bans essentially being discrimination based on sex:
A woman may marry a man, but a man may not.
Chief justice Roberts made this point during arguments in obergefell v. hodges.
And you're incorrect about the timeline. Gay marriage was approved of by a majority of Americans somewhere around 2011-2012. The supreme court decision was 2015. See my other comment in this chain for polling data.
“Rights” are what other human beings agree to recognize. That’s just the nature of law as a construct. What the federal courts in America have done is set themselves up as a tribunal of elites for deciding moral issues that other countries decide democratically.
This unsurprisingly causes a lot of friction. Same sex marriage actually wasn’t one of those areas—US opinion and that in other developed countries wasn’t far off, and it was legalized after it hit majority support. And Obergefell has a much stronger basis in law than other Supreme Court social decisions. There is a long line of precedent recognizing that marriage is a “fundamental right” protected by the constitution.
But abortion and religion in schools are examples of where the court is significantly out of step with both the letter of the law and public opinion. Public opinion in America supports abortion in the first trimester and or after that. That’s the same moral balance as reflected in the laws of say Denmark, France, Spain, Germany, and Italy (where abortion is generally illegal after 10-14 weeks). But under Roe abortion cannot be banned until the end of the second trimester. So our elite tribunal has imposed an abortion regime in the US that’s inconsistent with what more liberal Europeans have.
Same thing for religion in schools. 2/3 of Americans oppose the ban on school prayer. By contrast, instruction in public schools is a legal right in much of Europe, including the UK and Germany.
Being out of step with the public can be justified if that’s what the letter of the law requires. What’s most perplexing about Roe in particular is that it’s out of step with public opinion (broader than what the public wants) and also has no basis in the constitutional text. What’s the source of the court’s authority in that context?
> What’s most perplexing about Roe in particular is that it’s out of step with public opinion (broader than what the public wants) and also has no basis in the constitutional text.
This is false, Roe doesn't have “no basis in the Constitutional text”. It is true that the derivation of the understanding of rights articulated in Roe from the text is indirect, but that does not make it absent; it is a judicial understanding built on prior judicial understandings each of which directly or via even more intermediary judicial understandings derive from the text.
> What’s the source of the court’s authority in that context?
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority”
A difference between us and Europe is that our country was founded on maintaining a separation between the state (which runs the schools we're talking about) and religion, and Germany wasn't. The entire premise of the Constitution --- really of any constitution --- is to insulate those kinds of governing principles from public opinion.
> House’s final version: “Congress shall make no law establishing religion.”
> The Senate responded with: “Congress shall make no law establishing articles of faith or a mode of worship.”
> The Conference Committee came up with the final version, “Congress shall make no law respecting an establishment of religion.” The Committee’s addition of “respecting an” was not explained at the time but has been the subject of a great deal of recent commentary. In its own time, however, the clause generated none of the heated arguments that had accompanied church–state issues in the states.
> where there is silence or substantial ambiguity it seems right to err on the side of popular opinion
If “it seems right” is a good way to run a country, why do we even have laws?
I don’t think abusing silence and substantial ambiguity is a coherent approach to legislation. If something important in the law is ambiguous, the correct approach in my view is to make it unambiguous by the usual legislative process.
