Judge Vaughan Walker's ruling overturning Proposition 8, the referendum passed in California in 2008 preserving traditional marriage, has provoked a firestorm of controversy, and not just for the obvious reasons.
Because apart from overturning the will of the majority of Californian voters, Judge Walker also attempted to assert that gay marriage has always been part of the "historical core" of the legal marriage tradition of the US.
Maggie Gallagher, one of the leading pro-marriage voices in the US, in a blog on the US website Townhall, points out that Walker “ignored expert witness testimony when it clashed with his own views”.
She writes: “Harvard professor Nancy Cott, a historian of marriage, favors gay marriage, but even she freely admitted in trial that gay marriage represented a momentous change in the public meaning of marriage, and that the effects of this change would be impossible to determine in advance.”
On the other hand, Gallagher says, Walker's ruling “creates a fantasy alternate reality in which it is simply a 'finding of fact' that gay marriage has always been part of the 'historical core'” of the US marriage tradition.
Gallagher says: “Walker ignored the evidence presented from distinguished social scientists, as well as previous court decisions, that 'responsible procreation' has always been considered a core purpose of marriage, in addition to evidence that children benefit by being raised by married mothers and fathers.”
Walker also ruled that sexual orientation was a protected class subject to strict scrutiny, a holding which ignored 10 higher-court decisions to the contrary.
As Gallagher points out: “He doesn't contest, distinguish or disagree with these binding precedents. He literally ignores their existence.”
(A detailed rebuttal of Judge Walker's ruling can be found here.)
Meanwhile, despite the fact that, whenever US states have put same-sex marriage to a referendum, it has lost, even in heavily liberal states like Maine and California, many pundits, including some conservatives, still believe that, over the long run, same-sex marriage will come to be accepted by American voters.
However, polling evidence now suggests that even the current level of support for same-sex marriage may be overstated. A leading liberal pollster is arguing that most polls on same-sex marraige can't be trusted because Americans -- not wanting to be labeled intolerant -- are hesitant to state their position on the issue to a live interviewer.
Tom Jensen, director of the Public Policy Polling (PPP) company, says automated polls -- that is, polls in which a person does not talk to someone but instead can press buttons on a phone keypad -- are more reliable. His company uses automated polling.
Recently, in a result much-heralded by supporters of same-sex marriage, a poll conducted on behalf of CNN found that a slender majority of voters favoured it. Fifty-two percent said "yes" and 46 percent "no."
However, PPP's latest poll, released Aug. 13, shows Americans opposing same-sex marriage by a margin of 57-33 percent.
Both polls were conducted after a federal judge struck down California's constitutional amendment defining marriage as between one man and one woman.
Part of the difference can attributed to the questions asked. PPP asked 606 registered voters, "Do you think same-sex marriage should be legal or illegal?" The CNN poll asked 496 adults, "Do you think gays and lesbians should have a constitutional right to get married and have their marriage recognized by law as valid?"
Jensen, however, believes that there is a difference between the response voters give to a person and the one they give to a machine. "[People are] more likely to tell their true feelings on an automated poll where there's no social anxiety concern than to a live interviewer who they may be worried about the reaction of," Jensen, who supports same sex marriage, says.
"It is frankly impossible, based on the results of gay marriage referendums over the last decade, to believe that a majority of Americans support its legalization. Dark blue states like California and Maine voted against it just in the last two years."
Public Policy Polling was the only company last year that correctly predicted Maine citizens would vote to overturn a same-sex marriage law.
Polls released by Gallup, CNN, The New York Times and all the major news networks use live callers. Only a handful of major polling companies use automated polling, among them Rasmussen Reports and SurveyUSA.
Meanwhile, the Telegraph reports that official UK figures show that the number of same-sex civil partnerships being dissolved there has doubled over the past year.
In addition, fewer homosexuals are now forming the legal unions than at any point since their introduction five years ago.
The declining popularity of the civil partnership could be down to the fact that most of the men or women in long-term same-sex relationships who were waiting for official recognition have now obtained it.