Legal Commentary

Interesting Similarity Between Two VC Reader Polls

By Orin Kerr

I had a sense of deja vu reading over the results of the VC reader poll on same-sex marriage. Here are the key results. First, as a matter of policy:

Favor same-sex marrriage: 61%
Oppose same-sex marriage: 33%
Don?t know: 6%

Second, as a matter of constitutional law:

Laws banning same-sex marriage are constitutional: 54%
Laws banning same-sex marriage are unconstitutional: 39%
Don?t know: 9%

So VC readers who responded and who have an opinion on the topic think that a law banning same-sex marriage is a bad idea by about 2?1, but a slight majority thinks such laws are constitutional. 

That rough breakdown reminded me of another VC reader poll on another big constitutional question, albeit on a totally different issue. Back in January 2008, I asked readers about their policy and constitutional views about a hypothetical law permitting the death penalty for child rape (in light of a then-pending Supreme Court case, Kennedy v. Louisiana). To be clear, obviously I?m not suggesting that there is any connection between gay marriage and either the death penalty or child rape. What?s interesting to me is the relative split in how VC readers approached their views of policy versus constitutional law. Here was how VC readers voted as a matter of policy:

Percent that opposed such a law: 62%
Percent that favored such a law: 38%

Notably, there was no ?I don?t know? for this option. Here was the breakdown for whether such a law is constitutional:

Constitutional 54%
Unconstitutional: 20%
Not sure: 25%

While the results are not identical, some similarities exist. 2?1 thought such laws were a bad idea, while a slight majority thought they were constitutional. I wonder if that same policy/constitutional breakdown exists for other controversial issues involving legal challenges to laws that touch on the culture wars. That might be the case: I wouldn?t be surprised if a certain percentage of readers find that their policy and constitutional views generally align and a certain percentage of readers find that their policy and constitutional views often diverge. Of course, it could just be a coincidence. It?s hard to know.

Full post as published by The Volokh Conspiracy on August 09, 2010 (boomark / email).