Is it still statistically too early or not for the Supreme Court of the United States to render a nationwide ruling regarding the legality of LGBTQ+ folks' right to marry others of the same gender?
Along with its variants Pro-LGBTQ+, Anti-LGBTQ+, Non-LGBTQ+; LGBTQ+ is a descriptor I recently coined to provide a more precise, accurate and neutral set of terminology to characterize the diverse sentiments expressed towards the LGBTQ+ community or towards LGBTQ+ behaviors and practices.
LGBTQ+ is an acronym which stands for lesbian, gay, bisexual, intersex, transsexual, transgender, third sex, queer and questioning folk plus all others similarly identified by other such acronyms anywhere in the world.
According to the National Conference of State Legislatures (NCSL); there is a total of approximately 646,000 same gender LGBTQ+ households of one kind or another in the United States of America. And of those same gender LGBTQ+ households, nationwide there are approximately 115,064 households in which there are children who may directly be affected by such a ruling.
But according to the NCSL; there are only nine US states and one district that now legally license same gender LGBTQ+ marriages.
Listed alphabetically, these states and district are (1) Connecticut, (2) District of Columbia, (3) Iowa, (4) Maine, (5) Maryland, (6) Massachusetts, (7) New Hampshire, (8) New York, (9) Vermont and (10) Washington.
And there are only another nine states that now legally license same gender LGBTQ+ civil unions or same gender LGBTQ+ domestic partnerships partnerships.
Listed alphabetically, these states are (11) California, (12) Colorado, (13) Delaware, (14) Hawaii, (15) Illinois, (16) Nevada, (17) New Jersey, (18) Oregon and (19) Rhode Island.
As such, there is only a total of 19 US provinces including 18 states plus one district that now legally license same gender LGBTQ+ unions of one form or another.
But the majority of states, 30 to be precise, still out law same gender LGBTQ+ unions of any kind.
Listed alphabetically, these states are (20) Alabama, (21) Alaska, (22) Arizona, (23) Arkansas, (24) Florida, (25) Georgia, (26) Idaho, (27) Indiana, (28) Kansas, (29) Kentucky, (30) Louisiana, (31) Michigan, (32) Minnesota, (33) Mississippi, (34) Missouri, (35) Montana, (36) Nebraska, (37) North Carolina, (38) North Dakota, (39) Ohio, (40) Oklahoma, (41) Pennsylvania, (42) South Carolina, (43) South Dakota, (44) Tennessee, (45) Texas, (46) Utah, (47) Virginia, (48) West Virginia, (48) Wisconsin and (50) Wyoming.
And only one state (51) New Mexico has not passed any legislation whatsoever regarding same gender LGBTQ+ marriage or same gender LGBTQ+ civil unions of any type.
Nonetheless, it is not advisable to simply claim that because 30 states do not now legally license same gender LGBTQ+ unions of any kind that the American public on average thinks that same gender LGBTQ+ unions should not now be nationally legalized in some way even though the data appears to suggest just such an interpretation.
After all, social science dictates that we must be as accurate as possible when addressing the question whether or not it is statistically too early for a nationwide LGBTQ+ ruling -- yeah or nay.
To provide a more accurate statistical analysis and not just a simple mathematical reporting of the numbers; the raw data listed above must somehow be converted into less potentially biased numbers.
Why not instead simply add up all the votes cast state-by-state in favor and against the legalization of same gender LGBTQ+ unions? Wouldn't that be a better stat?
After all, state polls are scientific polls -- akin to polls oftentimes sponsored by news agencies -- and not just a place to vote.
Like merely reporting the number of states with or without legalized same gender LGBTQ+ unions of some type; it is not advisable to only tally state-by-state the number of votes cast either in favor or against the legalization of same gender LGBTQ+ marriage or same gender LGBTQ+ unions. Like the state count, such raw data is also subject to error.
Instead, the numbers provided above indicating state sentiments Pro-LGBTQ+ and Anti-LGBTQ+ legalized same gender unions of some type including marriage must be weighted by such factors as the total number of people living in each state not just those who voted if we want to make this analysis statistically more accurate and representative of the true national population.
So for this analysis, I propose to use a regression equation already constructed and validated by the US government as the preferred stat, namely the electoral college count.
The electoral college count was designed to address such possible state polling errors at least during a US presidential election. The electoral college count is just such a weighted formula as is needed since it is based on population data provided by the US Census Bureau.
Furthermore; the electoral college count should be mathematically less bias than relying on the reporting of any one commissioned poll like those currently on the air waves.
Electoral college count is also a legitimate and economical short cut to avoid having to consult a statistician to design a more elaborate proprietary formula for this particular analysis.
But I recommend Nate Silver's blog Five Thirty Eight (538) in the New York Times for those of you interested in just such a proprietary analysis. Silver dubs his predictive model as "Nate Silver's Political Calculus".
Yes, like the analysis provided here the total electoral college count of 538 votes undoubtedly inspired the name of Silver's blog.
In a US presidential election; a candidate must win a total of at least 270 of the 538 electoral college votes to obtain statistical significance to become the US President-elect.
Likewise, in this statistical analysis; the preferred public opinion Pro-LGBTQ+ or Anti-LGBTQ+ same gender coupling legalization will be determined by the position receiving a total of at least 270 points out of the possible 538 points based on the 2012 electoral college system of points.
Even though many of these state determinations were made before that particular presidential election; the 2012 electoral college point system is the most up-to-date weighted formula readily available to us.
Here, the state vote is considered Pro-LGBTQ+ if the state does license any type of legal union between couples of the same gender.
Conversely, the state vote is considered Anti-LGBTQ+ if the state does not license any type of legal union between couples of the same gender.
After tallying up the states Pro-LGBTQ+ versus Anti-LGBTQ+ same gender legalized unions; the numbers respectively reveal a 211 to 322 split.
New Mexico's five electoral college points are not added here since same gender LGBTQ+ marriage and legalized same gender LGBTQ+ unions or the prohibition thereof are not part of that data set.
As the raw numbers suggest; these now weighted figures confirm that the country is fundamentally against same gender LGBTQ+ marriage and other legalized same gender LGBTQ+ unions at this juncture in time.
These numbers become even more dramatic if further stratified by those states only licensing same gender LGBTQ+ marriage where same gender LGBTQ+ civil unions and domestic partnerships are also treated as a vote against the legalization of same gender LGBTQ+ marriage along with an outright ban of sorts on such marriages.
Pro-LGBTQ+ same gender marital rights equals only 89 out of 538. Anti-LGBTQ+ marital rights equals an astonishing 444 out of 538. Again, New Mexico's five state electoral points are not included.
As such, it could now be more strongly argued that there is a nationwide public mandate against legalizing same gender LGBTQ+ marriages or same gender legalized LGBTQ+ unions.
Unlike the statewide statistics provided here, Nate Silver's data suggest a more pronounced and growing support for the legalization of same gender LGBTQ+ unions of some type or another.
The differences between this sample of state wide voting data and Silver's analyses may in part be the result of sampling bias, formula and methodological differences.
Again, the data reported here only deals with the actual voting electorate whereas other polls like those Silver analyzes arguably contains a more representative swath of the American tapestry. Also Silver's stats include data based on more varied collection methodologies as well as more recent polls.
It is also important to note that unlike California's (2008) state data not all of the statewide poll data reported here took place recently or during a presidential election when a more representative and just larger voter turn out is expected.
Nevertheless, the stats provided here still clearly demonstrate that the voting American public is not likely to support the legalization of same gender LGBTQ+ marriages or legalized same gender LGBTQ+ unions when metaphorically speaking in the privacy of the ballot booth independent of the reported polling trends favoring the legalization of same gender LGBTQ+ unions when obtained online, via phone or some other format.
Should this statistic now be used to surmise that it is indeed too early for a nationwide ruling in favor of the legalization of same gender LGBTQ+ marriages or same gender LGBTQ+ unions?
Put another way; does this statistic support the theory that it is not too early for a nationwide ruling but only one that opposes the legalization of same gender LGBTQ+ marriages or same gender LGBTQ+ unions?
Alas alone, this statistic no matter how painstakingly gathered should not be used to posit an answer to either question.
But if necessary this stat may be used as a predictive indicator along with other such variables to forecast the likely voting patterns of the American public on the issue of the legalization of same gender LGBTQ+ marriages or same gender LGBTQ+ unions.
Why is further statistical analysis still required if sample bias was amply controlled in the previous analysis?
Firstly, it is only an assumption -- one that has not been validated -- that reporting the average American opinion is actually the best determinate or independent variable to evaluate the appropriateness of the timing (the dependent variable) in rendering a nationwide LGBTQ+ decision.
Herein, the appropriateness of the timing as a dependent variable is derived from the wording "too early or not".
I, for one, question the validity of such an assumption. But why question such an assumption?
The American public opinion even that of the voting electorate no matter how invaluable in creating law is not necessarily the most valuable factor in determining or reinforcing what is already law. As such, the American public opinion as an independent variable whether in alignment with the law or not must assume a lesser role in determining the appropriateness of the timing in rendering a nationwide LGBTQ+ ruling.
So what is the most important factor in determining the appropriateness of the timing in rendering a nationwide ruling on LGBTQ+ issues? Just who determines the appropriateness of the timing for such a ruling? How does such a determination come about in the first place?
I submit that it is the actual findings from the judicial review regarding the legal merits of the specific LGBTQ+ cases presently before the Court including the breadth, depth and scope of those cases that will be and are always to be the most heavily weighted independent variables in determining the appropriateness of the timing as a dependent variable of any nationwide ruling.
Circuitously, it is the Supreme Court of the United States (SCOTUS) who ultimately determines the appropriateness of the timing for just such a nationwide ruling -- nay or yeah -- by first awarding the cases legal jurisdiction and secondly by evaluating the legal merit of the cases relying on a variety of evidence or data if you prefer.
It is a circuitous process in that SCOTUS' judgment regarding the appropriateness of the timing to render a nationwide LGBTQ+ decision only results from actions spurred on by individual American citizens, on behalf of the citizenry at large, their legal representatives as well as the states' judiciary and other branches of the federal government all of whom registered their respective opinions with the Court in some form or another.
As a brief refresher; there are three parts to the US government the (a) Executive, (b) Legislative and (c) Judiciary branches.
POTUS (the President of the United States) heads the Executive branch of government. The Congress consisting of the House of Representatives and the Senate heads the Legislative branch of government. SCOTUS heads of the Judicial branch of government.
SCOTUS was created in accordance with Article III, paragraph I of the US Constitution by the authority of the Judiciary Act of September 24, 1789 (1 stat. 73) and organized on Feb 2, 1790. "[T]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
SCOTUS is charged first and foremost with determining what is law or lawful when reaching a decision.
By design, SCOTUS must always place its highest premium on evaluating the legal merits of any case brought before the Court. Chief Justice John Marshall (1803) Marbury v Madison said "It is emphatically the province and duty of the judicial department to say what is law".
SCOTUS is charged with interpreting the law even though as the Chief Law Enforcement Officer POTUS may recommend an interpretation as to the constitutionality of the law as has occurred with respect to both LGBTQ+ cases presently before the Court.
SCOTUS is not charged with creating law. Creating laws is under the province of the Congress even though POTUS may as the Chief Executive Officer recommend the creation of a new law or laws.
However, this is not to say or even to imply that the American public opinion including that of the electorate is not weighed in a SCOTUS interpretation of what is law.
I respectfully submit that public opinion is just one of many independent variables SCOTUS evaluates in an implied theoretical proprietary regression equation consisting of other similarly designated but individually weighted independent variables.
With or without immediate peer consultation; this theoretical SCOTUS regression analysis is conducted by each individual justice.
Then, in theory, a collective but not necessarily unanimous opinion is reached based on the arrangement or rearrangement of the weights assigned to the individuals' list of weighted independent variables.
Again, this SCOTUS regression analysis is implied and as such only theoretical.
This is not to say or even to imply that the SCOTUS justices perform such an analysis with consciousness of forethought but only to say that such an analysis is implicitly embedded in the judicial review process itself.
As such, the justices do not have to hire a statistician to perform such an analysis. This posited regression analysis is just a natural by product of the judicial proceedings when allowed to develop according to due process.
As I pointed out in a previous opinion editorial entitled "SCOTUS not Attorneys Advocate for The Best Interest of the Child"; these particular SCOTUS justices appear poised to allow such a thorough judicial analysis to ensue.
A paradigm shift undoubtedly; I further submit that every American voter theoretically constructs an implied regression analysis of sorts akin to the one posited here by our illustrious SCOTUS justices in casting a vote.
I submit that even in instances when it appears that political party affiliation, residency, religious affiliation so forth and so on is the only independent variable under consideration by the individual person such variables are more accurately viewed as the most weighted independent variable under review by the individual.
The independent variables weighed by an individual American voter may be weighted more idiosyncratically and rightfully so as the former is not under any contractual obligation as judicial officers of any Supreme Court are to weight the law most heavily when casting a personal and private vote.
Also the independent variables selected by the American public as most germane to an individual analysis may just be different from those of the SCOTUS justices.
Of course, when metaphorically speaking in the privacy of a state polling booth; individual Supreme Court justices just like the rest of us may cast a vote as idiosyncratically as desired.
But when seated metaphorically on the proverbial bench; the SCOTUS justices must vote in alignment with a value system predetermined by and subservient to each one's understanding of the law.
Unlike SCOTUS justices; even members of the Executive or Legislature branches of government are not similarly mandated.
Such government officials just like the public may cast a vote, render an opinion, or make a recommendation weighting variables other than the law most heavily.
So if the Supreme Court decides the public's opinion as one of the many already weighted independent variables under consideration is in conflict with the law or unlawful in some way; that opinion no matter how pronounced is not only reweighted accordingly it may even become nullified altogether under such conditions in any hypothetical regression analysis.
We know the latter is a definite possibility. After all, it was the justices' ruling by the California Supreme Court that first overturned Proposition 22 a ballot where the voting electorate originally denied LGBTQ+ folks the right to marry someone of the same gender in that state.
In a hypothetical SCOTUS regression equation; the decision of the California Supreme may very well take precedence over public opinion once again.
After all, the California Supreme Court (2000), the Hawaii Supreme Court (1993), the Massachusetts Supreme Court (2003), the New Jersey Supreme Court (2006), the Connecticut Supreme Court (2008) and the Iowa Supreme Court (2009) have all already weighed in on this matter before ruling that it is constitutionally unlawful to deny same gender LGBTQ+ folks the right to marry one another.
Beyond the Judicial branch of government; the Executive and Legislative branches are also weighing in on the LGBTQ+ cases before the Court.
The President of the United States has publicly stated that he views any law prohibiting same gender folks from intermarrying as unconstitutional.
Following the President's lead; other administrative officials have also weighed in on this matter indicating unequivocal support for same gender LGBTQ+ marriages.
But Congress has a more varied opinion which albeit presumedly based on an implied regression analysis as well appears most heavily weighted by political party affiliation at this time.
Naturally, all of these independent variables must be weighted in any SCOTUS regression equation especially that of an implied analysis theoretically embedded in the judicial review process itself.
In no particular order of importance; the implied proprietary SCOTUS regression analysis might be comprised of weighted independent variables like (i) the Judiciary branch of government including the law and former state supreme court rulings, (ii) the Executive branch of government including POTUS, his cabinet and administrators, (iii) the Congress including the House of Representatives and Senate, (iv) American public opinion as articulated in state propositions, amendments etc. as well as expert mathematical assessments approximating the true opinion of the American population (v) LGBTQ+ community (vi) social science factors like the best interest of the child (whether raised in same gender two parent LGBTQ+ household, single parent LGBTQ+ household, single parent non- LGBTQ+ household, two parent cohabitating non-LGBTQ+ households), advances in LGBTQ+ mental health so forth and so on.
These are just a few of the possible independent variables I have identified, discussed and reviewed here and elsewhere in Science on Digital Journal relevant to a SCOTUS determination pertaining to the appropriateness of the timing for a nationwide ruling -- yeah or nay -- on LGBTQ+ issues.
I have not factored in personal variables like gender, sexual orientation, political party affiliation, religious declaration and so on for the justices as theoretically such variables even when appearing dominant in the decision making process may merely be confounding variables.
Confounding variables are extraneous factors whose presence affects the variables being studied in a way that the results do not reflect the actual relationship between the variables under review.
Confounding variables may effect either the (A) dependent variable(s) (B) independent variable(s) or (C) both variables(s).
The question as to the appropriateness of the timing for a nationwide ruling -- nay or yeah -- on legalized same gender LGBTQ+ unions entered the public domain or the public's collective consciousness most notably last year when Justice Ruth Bader Ginsburg at the 40 year anniversary of her becoming the first female tenured professor at Columbia Law School told those in attendance regarding Roe v. Wade 1973 decision -- legalizing nationwide abortion -- "It's not that the judgement was wrong, but it moved too far, too fast."
According to the HuffPost Politics; back in 1973, abortion on request was only legal in four states. There were only 16 other states that allowed abortions under special circumstances. And the remaining 30 states prohibited abortion under every circumstance; including Texas where the case originated.
Do these numbers sound familiar? They should. The Roe v. Wade abortion case state numbers are undeniably close to the LGBTQ+ state data presented here:
Roe v. Wade: 4 yes/ 16 sc/ 30 no
LGBTQ+: 10 yes/ 9 sc/ 30 no/ 1 na
sc=special circumstances and
na=not applicable no legislation
When the yes state votes are tallied with the special circumstances permitting legalized abortion in Roe v. Wade and legalized same gender LGBTQ+ unions including marriage; the similarity becomes even more pronounced.
Roe v. Wade: 20 yes/ 30 no
LGBTQ+: 19 yes/ 30 no / 1 na
na= not applicable no legislation
Given the numbers; it is only logical to wonder if Justice Ginsburg's comment on the Roe v Wade (1973) SCOTUS ruling is also applicable to the upcoming LGBTQ+ rulings.
Are the justices trying to go too far, too fast? That is surely a rhetorical question.
Or is Justice Ginsburg suggesting that it is more advisable to render a nationwide ruling -- nay or yeah -- when the public's or perhaps more specifically the states' opinion statistically approximates that of the Court as occurred for example in the 1967 Loving v Virginia when the Court's ruling supported the rights to racially intermarry? This too is a rhetorical question.
Loving v Virginia: 34 yes*/ 16 no
David Boies co-attorney with Theodore Olson -- supporting the respondents in favor of same gender LGBTQ+ -- was recently asked questions regarding the appropriateness of the timing of the LGBTQ+ cases before the Court on broadcast television.
Boies replied that once it became apparent to him and his team that someone would soon be bringing a case against Proposition 8 (denying same gender folks the right to marry one another) before the Court he thought it best for it to be a firm like his with sufficient resources to handle such a case.
He concluded that no matter how judicially obtained a win for his team would be any judgement that allows LGBTQ+ folks the right to marry other LGBTQ+ folks of the same gender in California.
He went onto stipulate that he would prefer a nationwide victory.
But he did not predict how likely it was to obtain a nationwide victory. Instead, he predicted that there should be no nationwide defeat banning states from continuing to allow LGBTQ+ persons to marry others of the same gender.
Unlike Boies, I am not trying to surmise the likelihood of a nationwide victory or defeat.
Instead the issue for consideration here is whether or not it is statistically too early or not for a nationwide ruling whether nay or yeah which of course now patently obvious only the Court will decide based on its review.
More specifically, it is not statistically too early for the Court to render a nationwide ruling on the legality of LGBTQ+ same gender marriage if the Court deems the cases merit such a ruling.
US state polls repeatedly reveal that if left to a vote the public will consistently vote against the legalization of same gender LGBTQ+ marriages or same gender LGBTQ+ unions.
For the foreseeable future; this particular voting electorate appears to have made up its collective mind.
However, with time; more and more state Supreme Courts may be expected to challenge the constitutionality of state actions prohibiting same gender LGBTQ+ folks from intermarrying.
If so; such state rulings may seem to predictably co-opt the decision making process in turn further alienating a state from its peoples.
Some might conclude that the poll data reported herein demonstrates a marked trend toward the ongoing polarization of the nation if this experiment is allowed to proceed on its present course without a nationwide judicial intervention.
Others may conversely argue that allowing the states' judiciary more time to weigh in on this matter will in turn better prepare the public for a possible Pro-LGBTQ+ ruling one day in the indeterminate future.
Such an argument is likely to be predicated on the assumption that factors like exposure to same gender LGBTQ+ legalized unions including marriage may influence public opinion.
Or something like the public opinion will change as a result of a new generation succeeding to electoral power.
Be that as it may.
I submit that things are not necessarily going too far too fast for this particular American constituency.
This assessment is based on a preliminary albeit implied regression analysis consisting of such independent variables as those listed below.
In no particular order; these variables include but are not limited to the (I) transparency of the proceedings, (II) erudition of justices, (III) the faithful execution of the scientific/ judicial process (attuned even to the voice of the electorally silenced including our children), (IV) richness and diversity of the jurisprudence employed including most notably advancements from the social sciences, (V) sincerity of the Court, (VI) overall perceived fairness of the process and (VII) the completeness of the data set even if not definitive or easy to master.
It is my position that Americans are resilient even when not treated equitably.
But Americans are particularly resilient when matters are perceived to have been handled equitably.
So we can expect the country to handle any ruling the Court renders nationwide whether yeah or nay, circumscribed or otherwise.
Nonetheless, I submit that it is also the responsibility of pundits and others alike to help the public prepare for a range of options.
Once the ruling is issued; it also incumbent upon such persons to help the public process that ruling in a responsible, thoughtful and non-inflammatory manner.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com