Public Opinion, Cultural Change, and Constitutional Adjudication

When do courts pay attention to public opinion in deciding constitutional issues? When should courts do so? This Article provides a limited answer to those questions. Courts often pay attention to public opinion when deciding constitutional issues, especially when the issue is one that involves a challenge to a long-standing cultural norm.

That pattern is present, for example, in each of Plessy v. Ferguson and Brown v. Board of Education. The Court changed its view of equal protection because public opinion about racial segregation changed. Today, the long-standing cultural understanding of marriage is challenged by those who claim that its perpetuation violates the equal protection and due process guarantees. While nobody can predict with any certainty what the judicial resolution of this issue may be, it should not be surprising if that resolution reflects public opinion on the matter.

Public opinion data on issues of special concern to the homosexual community suggests that each of the legislative and judicial responses at the state level reflects public opinion or, if anything, lags a bit behind. But the courts catch up, and it is appropriate for courts to consider public opinion when weighing constitutional challenges to deeply embedded and long-accepted cultural practices.