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Comment by twoodfin | Hacker News Reader

The case comes amid a wave of gay marriage legalization...

This phrase, and the title, mask the fact that in the majority of states same-sex marriage legalization came from court cases, not through legislation or referenda[1].

"America", broadly construed, is quickly changing its mind, too, but this "wave" is more a product of judicial thought than public opinion.

[1] http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United...

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Judicial opinion often follows public opinion more closely than you might think. The constitution did not apply to non-whites until it did. Women did not have equal rights to men, and then they did. It was not the constitution changing but rather the legal interpretation of it.

Edited to add: the court cases do not occur until a significant portion of the population believes in an issue enough to be willing to fight for it. Even then, the courts may take a significant amount if time adjusting their legal interpretation.

You need someone to bring a case to court, yes, but do you need a court case and widespread popular support? Interracial marriage hit 50% approval in the US in the mid-nineties.[0] It was made legal (nationally) in the 1960s.

[0] http://www.gallup.com/poll/28417/most-americans-approve-inte...

You seem to have focused on my secondary comment rather than my main point. My point was that judges are a product of society as much as anyone. They may make rulings that are unpopular, but they will rarely make rulings that are unthinkable within our society. As for your example of interracial marriage, there is a stark difference between disapproving of something and thinking it should be a crime.

Yes, it has to be thinkable, but I don't know whether or not judicial decisions closely follow public opinion. With interracial marriage, it doesn't _seem_ to have. (I'll agree there is a difference between disapproval and favoring criminalization, I've seen no data on percentage thinking it should be decriminalized, so I use the data I do have, with a grain of salt.)

My issue is I don't have any data to say whether the judiciary follows closely public opinion, or comes from something else--luck of the draw in who happens to be sitting on the court, for example. (e.g., the change that switched national minimum wage from unconstitutional to A-OK seemed to primarily involved FDR putting friendlier judges on the bench, not an outcry from the public.)

At the same time, after these courts have started legalizing gay marriage, public support for gay marriage has followed. I always suspect it's a chicken-or-egg type of situation. Sometimes there is genuine public support for a given issue. Other times, change must occur first, and then people can see that society hasn't collapsed. Once polls began to demonstrate that more people supported gay marriage than were against it (years after the Massachusetts court decision), politicians began tripping over each other to suddenly become champions of gay rights.

In my own state of Minnesota the courts had nothing to do with legalization. Nothing likely would have changed either unless it wasn't for a bunch of anti gay bigots really pissing a lot of people off by trying to pass an amendment to the state constitution banning it. That misfire caused everyone that gave a shit about not being jerks to humans to fix that crap pronto by getting that amendment killed, then 6 months later fly a middle finger to the same people by getting an amendment passed to allow gay marriage. No courts were needed in this case. Though I recognize that is not the norm so far in the US.

Well in quite a few cases, the legalization came via a state passing a bill to allow gay marriage then someone challenging it in federal court.

The opposite occurred in the vast majority of cases -- people challenged gay marriage bans and won in court. And many states legalized same-sex marriage simply by virtue of being within a federal circuit that had ruled on the issue.

Right, what I was trying to get at was the Minnesota case isn't that different. They just didn't have the law being challenged in a federal court. In other cases, the law was changed and then it was taken to court. It's not like the courts just decided to make a ruling out of the blue.

It would be nice to see these charts mapped against public opinion polls, to help show which rights have been led by the government vs the people.

Well, here's one pollsters poll series

http://www.gallup.com/poll/117328/marriage.aspx

Note that the first court decision in the US (in Massachussetts) which led to legalized same-sex marriage was in 2003 with marriage becoming legal in 2004 (national public support at about 42%). Note that this was a state court decision, and public support in Massachussetts may have led what it was in national polls. Most of the final (not lower court decisions that were stayed pending appeal to a higher court which issued the final decision) court decisions -- and the acts by state legislatures not mandated by court decisions -- on the issue have happened in the last few years, with national public support at 50% or above.

In America, there's no longer much legitimacy placed in legislation; we generally look to the judiciary for any actual governing thought these days.

Legislation is mostly seen as a stepping stone; it's not until it's been tested in court that a law is really valid.

I find that sort of statement deeply disturbing.

Well, yes. So do I. That's why I felt I had to say it.

Sorry, I got that. I just didn't reflect it in my response.

It's also encouraging in a way. It's good to know that there are checks in place to prevent the enforcement of laws that violate our fundamental rights.

I suspect that some legislation has been written with this in mind for quite a while now. The laws themselves being an exercise in Overton window type thinking, not with any view that they would stand for long.

If true, this situation becomes somewhat self-perpetuating

Yes, I half expect to see something like:

  //Not sure what this line of code does, but if you 
  //delete it, you'll break the whole application

in a bill one day.

Nice analogy. Legislature writes the source code of the law and the judiciary tries their damnedest to compile it into an executable program, rejecting the parts that they can't make sense of.

Oh dear, no.

Legislature is the business people. The executive is the developers. The judiciary is the test team. That's how it's designed in the Constitution. The "original intent" of the judiciary was to be the guys waving their hands frantically saying, "Uh, this is a bug," while being completely ignored because there's a ship date to meet.

Its analysis is also perhaps weakened by not accounting for the backlash from states that passed new legislation to block gay marriages and the recognition of gay marriages.

An interesting contrast might be the UK, which in the space of 10 years moved from a government eventually winning a legislative battle to revise a local government act to remove wording prohibiting "the promotion of homosexuality as a pretended family relationship" in 2003, via civil partnerships the following year to full gay marriage in 2013, introduced by a Conservative Prime Minister who had once supported attempts to block the removal of the ban on "promotion of homosexuality". Opinion polls suggested that majority public opinion shifted in a similar direction over that period of time.

I suspect American attitudes towards perceived culture war will be a little more stubborn...

That is, unless the author considers "America changing its mind" and "judicial thought" to be the same thing. I immediately picked up on this as well, the common theme being what federal and state courts thinks.

This is really one of the most interesting questions in our system. I tend to be in favor of this sort of judicial action, but it's always in the back of my head that I'm only in favor of it because so far it has all gone my way. It is frightening to think that someday I'll find myself on the frustrating side of an issue where only a truly heroic amount of legislation can overrule the opinions of a few tens of legal minds.

That's a point that I've seen many try to make, regardless of their actual opinion on the matter, only to be shouted down. It's as if some people don't understand that such a thing could eventually be used against them. It seems that many people don't consider the long-term effects of their short-term gains. The court system can be fickle, what it does that benefits you today can be reversed in the future to your detriment.

Exactly. While the title suggests the population is changing it's mind, the data is centered on court cases.

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