SCOTUS Gives The GOP A Way Out Of The Same-Sex Marriage Battle

The Supreme Court has given the GOP a way out of a battle that they are going to lose anyway.

Elephants Fighting

Yesterday’s decision by the Supreme Court to deny review of the challenges to laws against same-sex marriage that were before it, which will eventually result in same-sex marriage being legalized in eleven additional states, is already beginning to have political implications inside the Republican Party. Not surprisingly, of course, we saw conservatives such as Mike Huckabee denouncing the ruling, while Senator Ted Cruz seems intent on using the issue for political gain with his announcement that he will introduce a Constitutional Amendment to give states the power to define marriage without review by the Federal Courts. That amendment has absolutely no chance of being ratified, of course, but it will serve Cruz’s purpose of further solidifying his bona fides with the social conservatives in the GOP as he continues to prepare for what looks like an all but certain run for the Republican nomination in 2016. Conservative groups for whom the marriage issue is seemingly their only reason to exist, have also chimed in negatively about the news, and will most likely use it in future fundraising drives consisting of appropriately apocalyptic rhetoric and imagery Other Republicans, though, have been more circumspect about their reaction to the ruling, especially Governors Scott Walker, Mike Pence, and Gary Herbert, all of whom govern states that were directly effected by yesterday’s move by the nine Justices. For the most part, though,  the immediate response to this major victory for marriage equality among Republicans has been silence:

To see how the politics of gay marriage has changed in this country in 11 years, revisit this Nov. 19, 2003 New York Times piece after the Massachusetts Supreme Court legalized gay marriage in the state: House Majority Leader Tom DeLay denounced what he said was a “runaway judiciary”; the Republican National Committee said the decision “could be an issue” in the upcoming presidential contest; and an aide to a Democratic presidential candidate predicted the subject “is going to come up again and again.” And, well, in 2004, a strong argument can be made that the gay marriage bans that showed up on swing state ballots that year did have an impact on the ’04 race. But fast forward 11 years later: After the U.S. Supreme Court yesterday decided not to review gay-marriage cases, effectively making it legal in a handful of additional states, Republicans were mostly silent. None of the top House GOP leaders (Speaker John Boehner or Majority Leader Kevin McCarthy) issued statements. Ditto the RNC. And most strikingly, we didn’t hear a peep about the Supreme Court’s (non)-decision on the 2014 campaign trail, including in the red-state battlegrounds.

Additionally, while potential 2016 candidates like Cruz and Huckabee are clearly intent on using these developments to advance their interests among one faction of the Republican Party, it appears that most of the people who are thinking about running for President in 2016 are relieved that the Court has done this, and hoping that the Courts take this issue out of the political realm before the campaign begins: (emphasis mine)

The Supreme Court’s decision Monday clearing the way for same-sex marriages in five states may benefit an unlikely group: Republican lawmakers who can’t wait to stop talking about gay marriage, an issue that is increasingly becoming a drag for the party.

Advisors to multiple likely 2016 candidates told TIME after the news broke that they are hopeful that swift action by the Supreme Court will provide them cover. “We don’t have to agree with the decision, but as long as we’re not against it we should be okay,” said one aide to a 2016 contender who declined to be named to speak candidly on the sensitive topic. “The base, meanwhile, will focus its anger on the Court, and not on us.”

Looking at this issue purely as a matter of electoral politics, this would seem to be the smart move for Republican politicians who want to appeal to voters outside of the party’s socially conservative base. While opposition to same sex marriage may have helped Republicans in the past, such as in the 2004 election, it now seems clear that this is no longer a viable strategy. Polling has now firmly established that a majority of Americans support granting marriage rights to gays and lesbians, for example, and that support is only likely to grow over time. Additionally, the forces opposed to same-sex marriage have not had an electoral victory since North Carolina voted to ban same-sex marriage in April 2012. Since then, three states have voted in referenda to legalize same sex marriage, one state (Minnesota) rejected a referendum that would have banned same-sex marriage, and six states have legalized same-sex marriage through the legislative process. Furthermore, polling has shown that a majority of young Republicans support same-sex marriage notwithstanding their party’s official position on the issue. Were it to continue to oppose same-sex marriage, it would only be a matter of time before the GOP found itself out in the cold alone on an issue that most Americans consider to have already been decided. At the very least, that will hurt the party’s efforts to reach out to younger voters, minorities, and other groups outside of the traditional Republican base that it is going to need to win in 2016 and beyond. If the GOP were to modify its position on this issue, there would of course be push back from the right such as what we’ve seen from social conservative groups who are openly campaigning against Republicans who have endorsed marriage equality. In the long run, though, the GOP would be much better off if it didn’t have the millstone of opposition to same-sex marriage around its neck, and in some sense that is what many Republican leaders seem to be recognizing in their silence in response to yesterday’s news.

The Washington Post’s Jennifer Rubin, who is obviously well-connected to Republican insiders, put it this way:

If it had not been evident before it is now, gay marriage is no longer a political issue at the federal level (or even for most state legislatures). While not a formula for good governance, Republicans may privately welcome the removal of this issue from the national political debate. It was one dividing the party generationally and among constituent groups within the party (libertarians vs. social conservatives, traditional marriage advocates vs. business interests). It served as yet another barrier to a more inclusive Republican Party.

There is a critical lesson here for social conservatives. Even with intrusive courts, major shifts in public opinion — and the rapid acceptance of gay marriage is one of these — can be delayed but not thwarted politically. Social conservatives failed to convince the country as a whole that gay marriage was harming heterosexual couples or society at large. When the issue came down to fairness, gay couples were bound to win, as has virtually every minority group seeking full acceptance in American society.

This, in the end, is where the opponents to same-sex marriage have failed. They framed their argument in the language of religion and defense of “traditional marriage” but they were up against people who didn’t want to destroy marriage, they just wanted to be a part of it, and that is a message that was bound to eventually resonate with the American people. In a remarkably short period of time, we’ve gone from an America where the overwhelming number of people opposed same-sex marriage to one where a growing majority of the public supports and a majority of the states will, in short order, recognize it as legal. That is due in no small part, I would suggest, to the fact that the proponents of marriage equality framed the debate in terms of fairness and equality, two ideas that resonate strongly with the American public as a whole. The Republican Party would be utterly foolish at this point to stay on the side of unfairness and inequality simply to please an ever shrinking, and increasingly irrelevant, segment of its party.

All of that being said, I don’t expect radical change on this issue from the Republican Party in the immediate future. While social conservatives may not be the force they once were, they still a powerful and important part of the Republican coalition, and most Republican politicians will be reluctant to alienate them too much in the future. Nonetheless, it is long past time for Republicans to rethink their parties position on an issue that, at least from a legal point of view, is pretty much over and done with to begin with. One place to start would be to encourage more people who support marriage equality to run for office as a Republican, and to make it easier for Republicans to come out in support of marriage. Eventually, they’ll likely even nominate a candidate for President who supports same-sex marriage, although 2016 may be too early for that to happen. If  Republicans don’t change on this issue then they risk deepening the impression that their party is out of step with the country, and making it far less likely that the groups that they will need to bring into their coalition in the future are even going to give them a second look. The Supreme Court has given the GOP a way out of a losing battle, they should take it.

Update: You can see one sign of Republicans who see the wisdom of this approach in a new campaign launched by a Republican group called the American United Fund called Stand Out For Marriage:

WASHINGTON — A pro-marriage equality group backed by a major conservative donor is launching a campaign Tuesday to enlist support from “rank-and-file” Republicans.

The American Unity Fund, started by hedge-fund manager Paul Singer in 2012, will begin the campaign with a video featuring Republicans, and led by MSNBC host Abby Huntsman, stating why they support marriage equality.

“What this campaign is designed to do is to give rank-and-file Republicans, conservatives, libertarians, moderates, independents across the country a way to express their support for freedom for everyone and to become a part of this civil rights movement of our generation,” the group’s senior adviser, Jeff Cook-McCormac, told BuzzFeed News on Monday.

People will be invited to submit their own videos about why they “stand out” for marriage equality. Among the videos uploaded to the site at its launch include one from Theodore Olson, the former top appellate lawyer for President George W. Bush who led the legal teams that ended California and Virginia’s bans on same-sex couples’ marriages.

American Unity Fund’s bigger initiative is in the donor world: The group last week hosted a a conference in D.C. for Republican donors and major activists.


American Unity Fund aims for this campaign to let those people speak out in order to start building that grassroots support within the party. But, Cook-McCormac acknowledged, it also will provide the group with a list of “specific voters who are committed to this issue as we prepare for what will be a very interesting election cycle in 2016.”

These are the types of voters that Republicans need to concentrate on appealing to in the future, and it looks like its off to a good start.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. “We don’t have to agree with the decision, but as long as we’re not against it we should be okay,” said one aide to a 2016 contender who declined to be named to speak candidly on the sensitive topic.

    Truly a Profiles in Courage there.

  2. stonetools says:

    @Stormy Dragon:

    Truly a Profiles in Courage there.

    And indeed, this is why the Republican Party will not take this way out. The worshippers of property rights bankroll the party, but they do not have the votes: it’s the believers in Leviticus 18:22 who have the votes, and I’m sure they are unmoved by the polls, or what’s good for the propertarians.
    The Republicans are going to have to continue to cater to those voters, so the struggle will go on.In the meantime, if you truly want to advance SSM , vote for the Democrats-the party that is actually promoting SSM, rather than waiting and praying for the Republicans to see the light.

  3. michael reynolds says:

    We see again what a dead weight conservatives are on this country. They’re a backpack full of rocks that has to be hauled around by the rest of us. I know I should learn to be tolerant of the hopelessly stupid – after all, every bell curve needs a left side — and I would be if that stupidity were not of a piece with such malice. If they would only crawl off and be stupid by themselves and not insist on trying to force their stupidity on everyone else. Or just be stupid and not also so hateful.

  4. James Pearce says:

    One place to start would be to encourage more people who support marriage equality to run for office as a Republican, and to make it easier for Republicans to come out in support of marriage.

    I agree. Indeed, I think our next Republican president will be a lifelong supporter of marriage equality.

    (She’s just getting started on her undergrad now….)

  5. gVOR08 says:

    @stonetools: Plus there’s still a lot of money available to be grifted from the faithful.

  6. OzarkHillbilly says:

    I have little hope for the Republican party of today. The GOP of tomorrow???

    A few decades ago, I asked a somewhat homophobic buddy of mine, “What do you care?” Some years later his very liberal wife (makes me look like McCarthy) told me that question changed his life. I had no idea. There is hope.

  7. Ron Beasley says:

    The Republican Party may eventually come around but a lot of old people will have to die first. This is not as big an out as it might appear – the socons are still going to insist that they talk about it in the 2016 primaries. This is what happens when you build a party base of bigots and mythologists.