Here, the reader is well advised to recall the 2003 case, Lawrence v. Texas, in which the Supreme Court decided by a 6–3 margin that anti-sodomy laws were unconstitutional. In his dissenting opinion, Justice Scalia caustically stated that "[t]oday's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct." Further attacking the majority decision as the product of an elite, Justice Scalia added that "[s]o imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously mainstream."
It would be hard to not see the same thinking as underlying his less disdainful but equally critical dissent in Obergefell: that support for gay marriage is a norm for coastal elites and cloistered judges in the federal bar but an oddity in the remainder of the United States.
Here, Justice Scalia is provably incorrect. A 2014 Washington Post-ABC News poll, found that at 56 percent, a majority of Americans supported gay marriage before the decision. Broken down by region, there was a high of 65 percent in the Northeast, and sizable percentages of 59 percent and 61 percent, respectively, in the Midwest and West. The only region, where a majority did not support gay marriage was the South, but even there, the poll found 46 percent of the polled region in support of gay marriage with 47 percent not in support. Other polls have found similarly.
In short, a lack of diversity is certainly an issue of paramount importance in the law, but the Obergefell decision was not inconsistent with popular sentiment, as Scalia would suggest. Of course, even barring public support for same-sex marriage, the Court has made it clear that not every individual right should be subject to public referenda. However, what the polling data should clearly show is that the majority decision that Justice Scalia derided as a "judicial Putsch" and "social transformation without representation" was anything but.