By 2016, however, voters in 32 states would be willing to vote in support of same-sex marriage, according to the model. And by 2020, voters in 44 states would do so, assuming that same-sex marriage continues to gain support at roughly its previous rate.
Thus, even if one prudently assumes that support for same-sex marriage is increasing at a linear rather than accelerated pace, and that same-sex marriage will not perform quite as well at the ballot booth as in national polls of all adults, the steady increase in support is soon likely to outweigh all other factors. In fact, even if the Supreme Court decision or some other contingency freezes opinion among current voters, support for same-sex marriage would continue to increase based on generational turnover, probably enough that it would narrowly win a national ballot referendum by 2016. It might require a religious revival among the youngest generation of Americans to reverse the trend.
It’s also possible, of course, that the Supreme Court decision could somehow kick-start public support for same-sex marriage, causing it to accelerate faster, or that the recent spate of Democratic and Republican politicians coming out in favor of it could do so. But one no longer needs to make optimistic assumptions to conclude that same-sex marriage supporters will probably soon constitute a national majority. Instead, it’s the steadiness of the trend that makes same-sex marriage virtually unique among all major public policy issues, and which might give its supporters more confidence that the numbers will continue to break their way regardless of what the Supreme Court decides.
I think what Kennedy and others may be uncomfortable with is that usually when the Supreme Court finds there is a federal constitutional right, it has the laws of at least the majority of states already in support of that proposition, such as when it said interracial marriage cannot be banned or when it outlawed juvenile execution or when it outlawed sodomy laws. Usually, they can say, "see, most states agree with us already." But, the Court is very hesitant to say something is a constitutional right when only nine states allow that practice. It does not want to overreach and make the overwhelming majority (41) of states do something against their will. Kennedy is winking to gay rights advocates and saying, "go get same-sex marriage passed in the majority of states" and then you can come back to us and reasonably declare it is a national constitutional right.