The law is often criticised for being too slow in reflecting changes that occur in societal attitudes. But the debate over whether it is a catalyst for change, or simply reflects a shift that has already happened, is finely balanced: compelling empirical evidence can be hard to find.
In some circumstances, however, the law clearly does lead rather than follow public opinion. A prime example is capital punishment. The Murder (Abolition of Death Penalty) Act 1965 suspended the death penalty in Great Britain. Four years later, parliament voted for abolition to become permanent, although it was retained as a legal option for certain offences such as treason, and not fully abolished until the Human Rights Act 1998.
Legislators in the mid-1960s were far ahead of British public opinion. Contemporary polls show that 80% to 85% of the British public favoured retaining the death penalty. By 1983, when the National Centre of British Social Attitudes (NCBSA) first published its annual report, 75% were still in favour. And it was not until the NCBSA’s 2015 report that support among the British public for the death penalty dropped below 50% for the first time – to 48% – half a century after the Act was passed.
Another prominent example of a major change in English law anticipating a fundamental shift in social attitudes is the decriminalisation of homosexuality. Prior to the Sexual Offences Act of 1967, male homosexuality had been illegal for more than four centuries since Henry VIII introduced the Buggery Act in 1533. The last two men to be executed in Britain for buggery were hanged in 1835, while the death penalty for buggery was not abolished until 1861. A century later, when homosexuality was decriminalised, opinion polls still showed that over 80% of the British public believed that sexual relations between two adults of the same sex were always wrong.
Remarkably, this sentiment was even reflected by the chief architects and supporters of the legislation. Roy Jenkins, who as Home Secretary was instrumental in the 1967 Act being passed, said in the House of Commons: “Those who suffer from this disability carry a great weight of shame all their lives.” Meanwhile Lord Arran, who simultaneously promoted it in the House of Lords, said in debate: “I ask those [homosexuals] to show their thanks by comporting themselves quietly and with dignity… any form of ostentatious behaviour now or in the future or any form of public flaunting would be utterly distasteful… [And] make the sponsors of this bill regret that they had done what they had done.”
It’s hardly the language to inspire a modern day gay pride march. Notwithstanding the decriminalisation of homosexuality (for men over 21), stigma and prejudice against both gay men and lesbians remained widespread. Twenty years later, in 1987, 64% of the British public still thought that gay sex was always wrong. The remaining 36% were divided into those who thought it was mostly wrong (11%), sometimes wrong (8%) and rarely wrong (2%). Only 11% thought it was not wrong at all.
Today, in answer to the same question, things have changed beyond all recognition. Although a majority believing that there was nothing wrong at all with gay sex did not occur until 2014, things moved quickly since that tipping point was reached: by 2017, the figure had increased to 68% while the ‘always wrong’ figure had declined to 18%.
Changes in the law, both for the death penalty and for homosexuality, required half a century to elapse before public attitudes eventually caught up with legislation. Two generations growing up with the change already in place were needed before opinions fundamentally shifted.
A third key change in English law also took place at the same time: The Abortion Act 1967. Here, the picture is more nuanced. Attitudes vary, and always have varied, according to the circumstances under which abortions are carried out, rather than being absolute i.e. always right/wrong. In general, abortions for traumatic or health reasons have been approved since the 1960s whereas abortions for social reasons have tended to polarise opinion. Again, there has been a notable shift over the 52 years since abortion was legalised and very few people now reject abortions in all circumstances, usually on religious grounds.
Whereas the UK and the US operated almost in tandem in relation to the law being an instrument of social change in relation to homosexuality with attitudes following on behind, attitudes towards the death penalty and abortion separate the two countries. As does the influence of the courts in shaping and reshaping the law. In the UK, changes in social laws passed by parliament have been permanent and not subject to amendment by the courts. But in the US, the Supreme Court has been the ultimate guiding hand.
Partly as a result of diminishing public support for the death penalty, there were no executions in the US between 1967 and 1977. And then it came back – with a vengeance thanks to a series of decisions in the US Supreme Court: Woodson v. North Carolina, followed by Gregg v. Georgia, Jurek v. Texas, and Proffitt v. Florida, collectively referred to as the Gregg decision. Executions resumed in January 1977, when Gary Gilmore went before a firing squad in Utah.
But even in Trump’s America, where capital punishment remains on the statute book in 30 states, the death penalty is once again in decline, and hopefully on the way out. Last year, only 25 death row inmates were executed. So far this year, there have been seven. This is down from recent peaks: 98 executions under President Clinton in 1999 (he highest for more than 50 years), 71 under President George W Bush in 2002, and 52 under President Obama in 2009.
Rather like the workings of the US Supreme Court, abortion in America is a complex issue. Unlike the UK, both are subject to the tide of political change. President Donald Trump had made it a centrepiece of his campaign to ensure that the 1973 Supreme Court’s landmark decision in Roe v Wade would be overturned. It was this judgment that originally guaranteed a woman’s right to an abortion nationwide.
In office, Trump has reshaped the Supreme Court by appointing Justices Neil Gorsuch and Brett Kavanaugh. He has also appointed numerous judges to the courts of appeals and the district courts, many of whom have been overtly hostile to abortion rights. Collectively, these judges may ultimately help overturn Roe v Wade.
State legislators have further supported this initiative. Alabama has passed a law forbidding abortions, even if the pregnancy results from rape or incest, unless they are needed to save the mother’s life. Other states have followed: Georgia, Ohio, Kentucky and Mississippi have passed foetal heartbeat legislation prohibiting abortion at around six weeks while Utah and Arkansas now prohibit abortions after 18 weeks. Missouri and Louisiana have rushed to add their names to the list.
Although abortion remains a legal right in the US, the gap between what this means in practice in states across the country is rapidly growing wider. The stakes have been raised in anticipation that these new state laws will be challenged in the Supreme Court in the hope that it will overturn its own precedent, even though up to 70% of Americans support the right of a woman to choose. The Supreme Court justices may hear one or more cases related to abortion restrictions in the run up to the 2020 presidential campaign. Should Roe v Wade be reversed, it would not only be a significantly retrograde step, but it would also be contrary to public opinion, at least as it currently stands. Perhaps the thinking might be that if you lead the public down a certain path, over time they will follow – as evident from the liberal laws enacted in the 1960s. If this were the case, the wider implications could be very chilling indeed.
Dominic Carman, journalist, writer and legal commentator.