The clock is ticking down toward the eventual Supreme Court decision in Obergefell v. Hodges, which will supposedly “settle” the gay marriage question once and for all. Most of the observers I’ve seen making predictions seem to feel that they will codify marriage as a right which crosses all boundaries except in cases of children and close familial ties, and some seem to feel that opponents of gay marriage won’t even get all four conservative justices on their side. My own views on the general topic are well known and there’s no need to go into the whole thing again. (Suffice to say that I don’t think it’s within the government’s power to demand a license or a fee for two consenting adults to marry.)
More interesting to me at this point is the political fallout which will come from this decision no matter which way it goes. Needless to say, it’s going to set off some fireworks. Greg Stohr at Bloomberg has issued the dire warning of the “turmoil” which would ensue if the Supremes allow states to decide for themselves. It will be chaos, I tell ya!
A victory at the U.S. Supreme Court on same-sex marriage would be a historic moment for gay rights. Defeat would bring legal pandemonium.
The high court will decide by the end of the month whether the Constitution gives gays the right to marry. The court’s actions until now have suggested that a majority of the nine justices will vote to legalize same-sex weddings nationwide.
Should the court rule otherwise, it would throw gay rights into turmoil across the country, halting weddings in at least 15 states, raising questions about tens of thousands of unions and guaranteeing a new round of legal fights.
Greg provides a fairly good breakdown of the immediate impact on a state by state basis. Essentially, some states which have passed gay marriage either through legislation or court interpretation of their state constitution probably won’t be affected at all. These include 16 states along the lines of New York and Illinois. But in 20 others which currently allow the practice, including Florida, South Carolina, Kansas, Idaho and Alaska, such unions might stop almost immediately since they were court enforced over the wishes of the voters. In the rest of the states where there is no law allowing gay marriage, any efforts to enact change would probably be cooled down a bit.
But would conservatives really be “losing” if that happened? Even when hot topics are decided in the Supreme Court, the answer doesn’t always last forever. (Though the time required for that pendulum to swing can be generational.) It’s not as if the fight would go away, and sometimes in politics the fight is actually worth more than the victory. I’m reminded of the Roe v Wade decision in this context. Can you imagine what would have happened if the Supreme Court had either outlawed the practice of abortion or said that it was exclusively up to the states? Think about it for a moment. When the conservatives lost that one, it sparked the true beginning of the massive Pro-Life movement which continues to this day. In many states it has energized and bound together elements of the GOP and supportive conservative groups which might not have congealed as fully without that common enemy to do battle with. In some ways that fight, even though it was lost on the steps of the highest court, has provided the glue that drove conservatism forward for decades.
So what happens when (assuming it does) five, six or seven justices vote in favor of gay marriage in Obergefell v. Hodges? Do you honestly think that everyone is going to shrug their shoulders, suddenly realize they were wrong all along and just go home? I highly doubt it. In fact, in many of the states where the voters are most closely divided, it’s going to energize the base with an even greater interest in stopping more liberal appointments to the court in the next term. Conversely, if gay marriage is struck down at the federal level, the battle will shift back to the states and places like Florida will see a massive surge in activity by liberal, pro-gay marriage advocates eager to fight it out from state to state to state.
Personally, I’m with the professional court watchers on this one. I expect the court to find in favor of gay marriage. But conservatives shouldn’t be rending their garments too heavily just yet. In terms of political fortunes, it may just put more gas in your tank.