On Friday, the Supreme Court agreed to take up the issue of same-sex marriage rights, and the Court’s ultimate decision is likely to have a significant impact on the 2016 presidential election.
For many, the Court’s judgment on the heated issue of gay marriage is predictable. The Supreme Court’s narrow decision in United States v. Windsor led to the mass overturning of bans on gay marriage across the nation. But when a panel of judges on the U.S. 6th Circuit Court of Appeals reinstated gay marriage bans in Michigan, Ohio, Tennessee, and Kentucky, it threw a wrench in the works.
U.S. Circuit Judge Jeffrey S. Sutton found that, while same-sex marriage legalization is virtually inevitable, it should be decided by America’s elected representatives and not in the courts. There is a lot of merit to this claim – the history of justices meddling in contentious social issues is a dubious one. More often than not, the Court does not resolve but rather freezes social conflicts and prevents their ultimate resolution.
Sutton’s ideal is, however, just that. Despite the unsustainable status quo, in which one state’s marriage license may not be recognized in another, America’s political leaders have shown no interest in hammering out a legislative solution to the issue of gay marriage rights. Furthermore, while the Roberts Court is a notoriously cautious one, it is hard to imagine it coming down on the issue of gay marriage in a way that conflicts with their decision in Windsor.
Republicans are leery of the political impact the Court’s decision might have on their party’s 2016 prospects. “On the national level, the party is increasingly reluctant to focus on social issues, especially after the 2012 debacle over Todd Akin’s rape comments and as polling continues to show a majority of Americans support same-sex marriage,” CNN reported. “Some Republican strategists say quietly that a decision could bring some finality and take the issue off the table well before the election, while others say it could reignite the debate.”
It is easy to envision a scenario in which the Court essentially strikes down all same-sex marriage bans, effectively legalizing the practice, and that being met with a furious backlash from social conservatives and among GOP candidates on the 2016 debate stage. In that case, it is safe to expect some rhetorical overreach that will be cited by a compliant press corps as evidence that the Republican Party remains hostile not only to gay marriage rights but gay Americans.
But what will the Republican plan to oppose the Court’s decision in this case be? As frustrated as conservatives are by the Court’s decision in Roe, there is no legislative movement to overturn that judgment via the constitutional amendment process. Any Republican candidate who insists that they will seek to reverse a pro-gay marriage decision out of the Supreme Court via the amendment process should be laughed off the stage. They will have to contend with the fact that a similar initiative failed in 2004, despite the fact that there was a Republican in the White House and the GOP dominated both chambers of Congress. Republican primary voters would be urged to consider whether it would even be prudent to nominate a candidate so committed to misleading supporters.
And while it will be tempting for some conservative candidates to use the issue of gay marriage as a wedge in order to break away from a crowded pack, they would be doing so at the expense of their viability as a general election candidate. Basing a candidacy on the issue of opposition to gay marriage rights would be a supremely short-sighted approach to presidential politics, and one the nominee would regret in short order.
In the off chance that the Court allows for state-level gay marriage bans to remain in place, the issue will take on new urgency. Pledging to seek a permanent legislative solution to the conundrum will almost certainly become part of Hillary Clinton’s 2016 platform, and support for that proposal would unite a fractious Democratic Party. By contrast, if the Republican nominee continues to oppose same-sex marriage rights, it will split the GOP base. Despite the fact that polls do show that a majority of self-identified Republicans continue to oppose the legal right of gay couples to marry, an influential libertarian-leaning wing of the GOP has grown quite unfriendly toward negative rights in the last decade.
In this scenario, the Republican Party’s nominee will have to walk a tightrope on the issue of gay marriage, but it would be politically suicidal to back a new national ban outright. The most “hardline” conservative solution would be to defer to the states. Essentially, the best that the party’s evangelical base can hope from the GOP’s 2016 nominee is a proposal aimed at getting the federal government out of the marriage business altogether.
In either scenario, and one is far more likely than the other, the controversial issue of gay marriage rights will be largely neutered ahead of the 2016 campaign. The general election will feature a Republican candidate who has, at the very least, come to terms with gay marriage rights and a Democratic candidate who is enthusiastically supportive of them. Democratic attempts to create a social wedge issue out of this relatively minor disparity will look desperate.
That is not to say that the issue of gay marriage will cease to be controversial or contentious. The history of Court decisions on matters like these virtually guarantees that it will continue to be a provocative topic. As a political matter, however, the issue of same-sex marriage rights will have been decided regardless of how the Court rules.