Same-Sex Marriage and Our New Religious Politics

In the last week, two interesting polls have appeared, one from the Associated Press and the other from the Washington Post, on Americans’ reactions to the Supreme Court’s June ruling in the same-sex marriage case, Obergefell v. Hodges. Taken together, the polls reveal that America is more divided on the question than first appeared. And the polls reflect an unfortunate, new religious dimension in American politics.

Notwithstanding the widespread acclaim for the decision in the days following Obergefell, it turns out that many Americans do not favor making same-sex marriage a constitutional right. In the AP poll, only 39 percent said that they approved of the Court’s ruling, while 41 percent said they disapproved. In the Washington Post poll, a bare majority, 52 percent, said they approved the Court’s decision, while 44 percent disapproved. These results are much closer than one would have expected, given the immediate media reaction to the ruling.

Now, the fact that many Americans disapprove of the Court’s decision doesn’t mean the decision is wrong. Constitutional law doesn’t turn on opinion polls. (As it happens, I think the Court’s opinion is wrong as a constitutional matter, for reasons I explain here). And one must be careful about reading too much into polls, especially polls that follow an unusual recent event. In time, public opinion may settle in favor of the Court’s decision, especially given the fact that younger Americans apparently support same-sex marriage in significant numbers. Besides, people could disapprove of the Court’s decision for reasons that do not directly relate to the merits. Americans are generally in a bad mood about the state of our country these days, and the polls may simply reflect that dissatisfaction.

All that said, these polls seem significant to me, for three reasons. First, they demonstrate that opposition to the Court’s decision is not a fringe phenomenon. Forty-four percent of the country is not an insignificant group. Dissenters may be reticent about expressing their opinion publicly—or, indeed, to pollsters, which suggests the percentage of opponents may be even higher—but they are not a trivial proportion of the population. America is apparently still divided on the question of same-sex marriage, and this division will doubtless make itself apparent in our politics. More on this below.

Second, the results hint that some people who oppose the Court’s decision may do so out of concern for religious freedom. In the AP poll, for example, 56 percent said that religious liberty should take precedence over gay rights, the implication being that people anticipate a conflict between the two. They should. At oral argument in Obergefell, Solicitor General Donald Verrilli himself acknowledged the potential for conflict, on questions like tax exemptions for religiously-affiliated institutions that oppose same-sex marriage.

Finally, there is an unmistakable partisan divide. In the AP poll, a large majority of Democrats gave priority to gay rights, while a large majority of Republicans said religious freedom is more important. The extent of the divide is truly startling. “By a 64-32 margin, most Democrats said it’s more important to protect gay rights than religious liberties when the two are in conflict,” the AP reports. “Republicans said the opposite, by 82-17.”

This polarization is worrisome. Up till now, America has been spared the bitterness of religious politics. Unlike some countries in Europe, we have not had clerical and anti-clerical parties. True, particular religious groups have gravitated toward one or another political party. In New England, for example, Irish Catholics were historically Democrats and mainline Protestants Republicans, a conflict memorialized in films like John Ford’s The Last Hurrah.

But we have never had secular and religious parties as such. Both parties saw religion, in general, as a good thing, and religious liberty as a fundamental American value. Tocqueville noticed this and found it refreshing. “In the United States,” he observed, “if a politician attacks a sect, this may not prevent the partisans of that very sect from supporting him; but if he attacks all the sects together, everyone abandons him, and he remains alone.”

Perhaps the political consensus on the value of religion is breaking down. More and more, one of our two major political parties is identifying itself as secular, and the other as religious. That’s not to say that all Democrats are secularists and all Republicans religious believers—of course not. Just ask the folks at Secular Right. And people could value religious freedom but believe other interests outweigh it in particular cases. Still, there seems a clear trend: Religious freedom is becoming a partisan issue. That’s a very bad thing for America. You might even say it’s un-American. Let’s hope the trend doesn’t continue.

Mark Movsesian is the Frederick A. Whitney Professor of Contract Law and the Director of the Center for Law and Religion at St. John’s University School of Law. His previous blog posts can be found here.