5. Public Opinion and the Law: Gay Rights

About this Lecture

Lecture

In this module, we think about the extent to which the Supreme Court is influenced by shifts in public opinion when deciding questions of law, focusing in particular on the issue of gay rights. As we move through the module, we consider: (i) the extent to which the Supreme Court ought to respond to the will of the majority, and Alexanders Bickel’s concept of the countermajoritarian difficulty; (ii) the strength of social conservatism in the 1980s, including the explicit homophobia of figures such as Jerry Falwell, co-founder of Moral Majority, and Pat Buchanan, Reagan’s Director of Communications; (iii) the (potential) impact of social conservatism on the Supreme Court’s decision in Bowers v. Hardwick (1986); (iv) the increased support for gay rights from the mid-1980s onwards, and the (potential) impact on the Supreme Court’s decision in Romer v. Evans (1996) and Lawrence v. Texas (2003); (v) the impact of public opinion on the Supreme Court’s decision in Obergefell v. Hodges (2015); and (vi) the comments of Chief Justice Rehnquist on the influence of public opinion on the Supreme Court (“Judges, so long as they are relatively normal human beings, can no more escape being influenced by public opinion in the long run than can people working at other jobs.”)

Course

In this course, Dr Emma Long (University of East Anglia) explores how the Supreme Court of the United States works by looking at some of its landmark cases over the past 50-60 years – especially those relating to civil rights (broadly defined). In the first module, we think about the growth of the Supreme Court’s interest in civil rights in the post-war period, including its handling of an unprecedented number of cases related to individual rights. In the second module, we think about the Supreme Court cases that paved the way for Brown v. Board of Education (1954), making the argument that Brown should be seen not as the beginning of a civil rights movement, but as the culmination of a legal campaign that can be traced back to Missouri ex rel. Gaines v. Canada (1938). In the third module, we turn to the reaction to the Supreme Court’s decision in Roe v. Wade (1973) and think about the potential for Supreme Court decisions to turn a politically (relatively) inert issue into something much more controversial and hotly contested. In the fourth module, we think about the decision in District of Columbia v. Heller (2008), which – in its majority and minority opinions – produced unusually cogent outlines of the originalist and living constitutionalist approaches to interpretation of the Constitution. Finally, in the fifth module, we turn to the issue of gay rights and the extent to which shifts in public opinion impacts how the Supreme Court interprets the law.

Lecturer

Dr Emma Long is Senior Lecturer in American Studies at the University of East Anglia. Her research interests focus on the history of the US Constitution and the Supreme Court. Although interested in all aspects of this history, her particular focus is on the period since 1945 and on the rights contained in the Bill of Rights. Emma also has an interest in the interaction of religion and politics in American history, particularly issues related to the idea of the “separation of church and state” that emerge from the First Amendment.