Marc Soloman, the National Campaign Director for Freedom to Marry, one of the leading groups in the legal battle against bans on same-sex marriage, contends that the GOP is likely to face a political problem heading in to 2016 if, as many observers expect, the Supreme Court voids laws against same-sex marriage nationwide:
Whoever seeks the Democratic nomination will embrace the freedom to marry. Support is now part of the party’s DNA (which, by the way, was not the case in the last primary). And new evidence shows the cause is a turnout motivator for Democratic base voters.
The Republican approach will be more interesting. Candidates will be figuring out whether to use the old formula and appeal to a dwindling base of older social conservatives who turn out disproportionately in primaries. Alternatively, they could choose a different course, trying to skirt the issue through the primaries while maintaining an appeal to general election swing voters, a great majority of whom back marriage for gay couples and find discrimination objectionable.
Conservative darling Senator Ted Cruz has made his choice, seeking to build up the anti-gay brand, perhaps in anticipation of running. After the big Supreme Court news last month, Cruz proposed a constitutional amendment allowing states to ignore the courts striking down marriage bans.
Yet by the time the primaries roll around, loud and overt opposition like Cruz’s will be the exception, not the rule. Preserving the potential for appeal in a general election—and the prospect for a future in politics given how quickly opinions are shifting—will carry the day. Most candidates will do what they can to avoid the issue altogether. Silence is golden. Discrimination against loving couples just doesn’t sell like it used to, and they all know it.
Another compelling reason for them to steer clear: Most court watchers believe the freedom to marry will be the law of the land by June 2016, just before nominees are officially chosen in either party. Mainstream GOP candidates will be inclined to hew to the playbook Wisconsin Governor Scott Walker used this year even as the courts ended his state’s marriage ban in the midst of his reelection campaign: it’s settled law, out of my hands, let’s move on.
A Supreme Court decision striking down the bans against same-sex marriage in the remaining fifteen states where it is illegal at this point would certainly seem to be a game changer in the debate over marriage equality that has been going on in this country for the past fifteen years. For all intents and purposes, it would be the effective end of the debate over the issue in much the same way that Loving v. Virginia was the end of the debate over interracial marriage when that case was decided by the Warren Court in 1967. In theory, of course, it would still be possible to overturn this decision via a Constitutional Amendment, which is a course of action that some elements of the GOP have been advocating for some time now, but the odds that such an Amendment would ever get either the two-thirds support in each chamber of Congress it would need to go on to the states or the support of three-quarters of the states it would need to be ratified is so infinitesimal as to be non-existent. Indeed, even though advocacy for such an amendment has been something that the Republican Party has lent some small degree of support to in the past, it has never seemed to be something that even a majority of Republicans support at this point. Based on the polling on the issue of marriage equality among the entire population, which has shown majority support for the idea growing steadily for years, the odds that such an Amendment would ever gain popularity seems remote indeed. One suspects, in fact, that if the Supreme Court does in fact strike down the remaining state law marriage bans that public support for the idea will increase significantly as a result and most Americans will want to put the issue behind them.
But what of the Republican Party, which has been the primary political bulwark against same-sex marriage for the better part of the past decade? What becomes of the GOP’s opposition to same-sex marriage in a world after June 2015 if the Supreme Court hands down a ruling declaring the laws banning same-sex marriage are per se unconstitutional?
One clue to how Republicans might react can be seen in how various Republican politicians reacted to the Supreme Court’s decision at the start of its term to deny review of the appeals in seven cases, which impacted the marriage laws of eleven states, five of them directly and six of them indirectly. When that happened, Republican Governors in states impacted by the decision such Scott Walker,Mike Pence, and Gary Herbert, all of whom basically said there was nothing they could do to stop same-sex marriage at that point and they weren’t going to try. Governors and Attorneys General in a few other states spent some time trying to fight the inevitable, but in the end they too have mostly accepted the inevitable. More broadly though, the GOP response to the developments in the Supreme Court has been silence. Some Republicans, such as Mike Huckabee and Senator Ted Cruz have spoken out against the decision for what are obviously blatantly political reasons related to their desire to appeal to the social conservative wing of the GOP. However, there was little comment on the issue from Republican leaders in Congress and, as Soloman notes, no comments at all either form the leading Republicans running in high profile Senate and Governor’s races around the country. That silence was, in some sense, deafening because it is arguably an indication that there is no longer any political advantage to Republican candidates to take a hard-line position against same-sex marriage, even in “red ” states. If this is how Republicans reacted to the Supreme Court’s inaction in October, not with a bang, not with a whimper, but with silence, then it’s logical to believe that most of them will see a Supreme Court decision that effectively ends the debate in much the same manner, especially since that’s how the majority of the public is likely to view the matter. There will, no doubt, be some push back from the right in the wake of a decision from SCOTUS legalizing same-sex marriage, but for the most part it will amount to sound and fury signifying nothing. As a practical matter, if the Court legalizes same-sex marriage then the issue will be politically dead, and one suspects it will be much to the relief of many Republican politicians who even now recognize that their parties opposition to marriage equality has largely turned into a political albatross for the party at the national level.
None of this means that the culture war that the right contends exists surrounding the issue of same-sex marriage will end, of course. Indeed, a Supreme Court decision striking down the remaining bans against same-sex marriage in the United States is likely to step up the volume on debates over the issues surrounding the legal rights of people who object to the idea of same-sex marriage regardless of its legal status. We’ve already seen previews of that battle in cases from around the country dealing with whether or not various vendors such as a florist in Washington State, a Colorado baker who refused to bake cakes for same-sex weddings, an Albuquerque photographer, a couple in New York State who had rented their farm out for weddings, but refused to allow a lesbian couple to use their farm for their wedding, and most recently an Idaho couple who runs a wedding chapel. Cases like this, and others that will inevitably arise in states where same-sex marriage is newly legalized but still resisted by some segment of the population, will likely generate litigation at the Federal and State level for years to come, and will be used by social conservatives as evidence as supposed “oppression” of people of faith for following their religious beliefs. That’s a battle that will mostly be fought out in the the courts, though, and of course exploited by conservative groups for fundraising purposes, rather than being matters we’re likely to see legislators being forced to deal with.
