The Politics Of The California Gay Marriage Decision

What impact will Judge Walker's decision on Proposition 8 have on politics in 2010 and beyond ?

While it will take years for yesterday’s ruling on California’s Proposition 8 to make it’s way through the Court system, the political impact may be far more immediate. Gay marriage, after all, is seen by many as being an issue that brought many conservative voters to the polls in 2004 to help George Bush defeat John Kerry. In 2008, California voters who overwhelmingly voted for Barack Obama also passed Proposition 8 itself.

So, will this decision have an impact on the 2010 elections and beyond ?

As Nate Silver notes, it depends somewhat on what the Republican Party and the Tea Party movement want to do with this issue:

One of the distinct features of the 2010 campaign to date has been a relative lack of discussion around gay marriage. There are a variety of reasons for this — there are no marriage ballot initiatives before the voters this year, for instance, and the country has a whole host of other, more tangible problems to deal with. But can we expect this to change with Judge Walker’s ruling today?

(…)

Although polling has shown that large majorities of Tea Party identifiers, like most Republicans and conservatives, are opposed to gay marriage, it has largely avoided discussion of the issue. The extent to which this has been a deliberate strategic choice is unclear, as the Tea Party is unusually decentralized. Nevertheless, it is arguably quite smart. The Tea Party has been successful, in part, because it feels fresh and new to many voters, distinguishing itself from Bush-era establishment conservatism and sometimes taking on the auspices of libertarianism. Were the Tea Party to come out strongly against gay marriage, or take explicit positions on other social issues like abortion and marijuana legalization, it would become indistinguishable from movement conservativism circa 2004, and would risk undermining the differentiation in its brand.

For the Republican Establishment, the calculus is somewhat different. They make no bones about being emphatically opposed to gay marriage. But a focus on the issue might look petty in comparison to weightier ones like unemployment, the deficit and health care, all of which are providing them with considerable momentum on their own.

However, the ruling today is potentially a game-changer in that it will allow both groups to frame the issue as one of judicial activism, rather than “family values”. This line of attack makes for cogent soundbytes, and it will arguably be quite salient to voters, as Walker overturned a referendum passed by the majority of California’s voters a mere 21 months ago. The less equivocal among the Republican Establishment may try to bolster their case by pointing to the fact that Walker himself is gay

Indeed, some on the right have already started to point that out, although what relevance that has to this matter other than to attempt to smear Walker, a Reagan/Bush appointee who has been described as being more libertarian in his rulings than “liberal”, is unclear to me. Whether Walker is gay or not, if Walker’s ruling is right on the law, it’s right.

On the larger point, I think that Silver is largely correct.

It will be hard for Republicans not to jump on this issue for it’s perceived political advantage in marginal districts. While it may not be much of an issue in 2010, it’s fairly easy to see how it will become one further down the road as the case makes it’s way through the 9th Circuit Court of Appeals and, eventually, the Supreme Court.

It’s hard to see that gay marriage will be a big issue for the GOP, though. Recent polls have shown that the American public is almost evenly divided on the issue and the trend, especially over the six years since the 2004 elections, has been toward broader public acceptance of same-sex marriage. In other words, this may not be the wedge issue that it once was.

Striking a tone similar to Silver’s Marc Eisner points out that this decision could actually end up hurting the GOP:

The California decision could open the door for a reemergence of social conservatism and a resurrection of the “culture wars” argument of the 1990s.  To the extent that this occurs, it may repel many of the Tea Party populists who appear to be far more libertarian in their political orientations. If the tensions intrinsic to conservatism rise to the surface once again, it may limit the magnitude of the GOP victories in the fall and beyond.

Republicans seem poised to succeed in 2010 largely because they are concentrating their message on the fiscal conservatism that unites the social conservative and libertarian wings of the party. If that changes, the GOP will be back in the years after the Cold War ended when social issues threatened to tear the party apart. If Republicans were wise, they’d stay away from this issue.

FILED UNDER: Campaign 2010, Campaign 2012, Gender Issues, Law and the Courts, Tea Party, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds 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.

Comments

  1. PD Shaw says:

    These are not solely social issues.  Many states cannot currently afford to expand partnership benefits to their government employees.  (I believe California already does though)  At the federal level, I think same sex marriage increases income tax revenue from the marriage penalty, but also increases social security obligations.

  2. legion says:

    I think Republicans will jump on this issue just out of pure instinct, but it won’t really help them… a lot fewer people (these days) are more frightened of teh gay than they are of, say immigrants.
     
    Of course, even more people are frightened of losing their jobs & homes, but the GOP won’t touch that (since any corrections to the problem involve rich people spending their money on silly things like job creation and capital investment), which is why they won’t really gain much (if at all) in the fall elections IMHO.

  3. Dave says:

    These are not solely social issues.  Many states cannot currently afford to expand partnership benefits to their government employees.  (I believe California already does though)  At the federal level, I think same sex marriage increases income tax revenue from the marriage penalty, but also increases social securityobligations.


    Maybe we should end state partnership benefits for straight couples, too. Or eliminate social security. That would save a lot of money.

  4. Herb says:

    “At the federal level, I think same sex marriage increases income tax revenue from the marriage penalty, but also increases social security obligations.”

    Weak….try and use that argument about anyone else besides gay people and see how many people laugh in your face.

    I think Legion’s on the right track with the GOP going for this on instinct.

    They’re like the reverse Tom Joad. Whenever there’s a bigot trying to deny rights to a minority, the GOP will be there….

  5. Wayne says:

    Re”although what relevance that has to this matter other than to attempt to smear Walker”
    You got to be kidding. That would be like saying what relevance is having a family member as a judge hearing your case or a board member of a country club hearing a case on that country club. Maybe it would have no influence on the verdict but it quite possibly would.
    Re “that changes, the GOP will be back in the years after the Cold War ended when social issues threatened to tear the party apart”
    Sword cuts both way. The DNC would have issues with it as will.  Also I think social decline, judicial activism and the major power grab by the Governments are becoming a much greater concern the the populous.
      IMO most people want the people to decide what constitutes a marriage. Once again an activist judge overturned the will of the vast not slim majority of the people and counter to the U.S. Constitution.

  6. sam says:

    “They’re like the reverse Tom Joad. Whenever there’s a bigot trying to deny rights to a minority, the GOP will be there…”
     
    Amen, brother — The Nuts of Wrath.
     

  7. Zelsdorf Ragshaft III says:

    Those who favor Prop. 8s overturn probably look forward to visits to the proctologist.  Latinos African Americans were the block of voters who helped push prop 8 into the win column.  The California Supreme Court upheld the legality of Prop 8.  A federal judge who happens to be gay found a basic right which does not exist in law and used it to overturn the will of the people of California.  The concept of a right to marriage is not listed nor did the founders forsee the possiblity that a biological anomoly would require constitutional protection.  If homosexuality which is sexual preferrence make one a minority in society, can I start a minority class and demand special rights because I prefer Redheads or Blonds?  Finally, if there is a right to marriage, why do all the states license it?  The feds have just told the states they do not have the power to regulate who gets married.  I am waiting for the first biological offspring from a gay union.  Guess they would be asshole babies.

  8. Herb says:

    Zels, you are such an unprincipled hack. Listen to you appeal to the “the will of the people.” I now expect you to start defending Obama’s presidency. That, after all, was the will of the people too.

    Oh, I’m sorry…you only trot out “the will of the people” when you agree with it. How convenient.

    but this takes the cake:

    “If homosexuality which is sexual preferrence make one a minority in society, can I start a minority class and demand special rights because I prefer Redheads or Blonds?”

    Go for it, Zels. Start that minority class. Then when the “will of the people” says you can’t marry a redhead or a blonde, then I expect you to say you’re okay with it.

    I thought you were a small government tea party type, Zels. But look at you go running to Big Daddy Government when it comes to the gays……..

  9. Franklin says:

    Then when the “will of the people” says you can’t marry a redhead or a blonde, then I expect you to say you’re okay with it.
    Old Zels just got burned with his own poker.

  10. Davebo says:

    <blockquote>Republicans seem poised to succeed in 2010 largely because they are concentrating their message on the fiscal conservatism that unites the social conservative and libertarian wings of the party. </blockquote>
    The conservative, and to a lesser extent, the libertarian wings of the party are going to have a really hard time convincing the public of the fiscal conservative bona fides seeing as how they cheered endlessly as the national debt nearly doubled in just a short 8 years under a fiscally conservative administration and for a time, a fiscally conservative controlled congress.
    Don’t get me wrong, I have no doubt they’ll try.  And there may be enough tea party idiots out there for it to at least partially work.
    Then again, what else do they have to offer other than phony fiscal conservatism?

  11. Wayne says:

    Re “when the “will of the people” says you can’t marry a redhead or a blonde”
    You jump right on passing that law. It won’t happen because that is not  and will not ever be the “will of the people”.
    It is the states’ right to regulate marriage. Why not allow people to have multiple married partners or to marry their cat or car? Because marriage is more than just a word or a ceremony.
    How dare we let the state or any government regulate if people can drive. Everyone has that “right” right? Everyone of any age or impairment should be able to drive. Blind no problem. We can’t discriminate against the blind after all.
    Let’s change what it means to have a college degree. Why limit it just to people who fulfill the requirements to be issue a college degree. Think of all the people who get discriminated against because they don’t have a college degree.

  12. An Interested Party says:

    “IMO most people want the people to decide what constitutes a marriage. Once again an activist judge overturned the will of the vast not slim majority of the people and counter to the U.S. Constitution.”

    I’m surte a similar argument was used against Loving v. Virginia…how dare those activist judges on the Warren Court overturn the will of the vast majority of the people of Virginia….

  13. anjin-san says:

    Interesting to watch the right pining for the good old days when “the will of the people” held sway. You know, like when the will of the people said women pretty much had zero rights. Or when the will of the people was that black people could be sold as slaves.

  14. Juneau: says:

    Echo…Echo…Echo

  15. If the people in DC or Chicago voted on it, you can bet that the bans on handguns would be brought back by an overwhelming margin.  Should Heller and McDonald have gone the other way, out of respect for “the will of the poeple”?

  16. Juneau: says:

    @Stormy
    If the people in DC or Chicago voted on it, you can bet that the bans on handguns would be brought back by an overwhelming margin.  Should Heller and McDonald have gone the other way, out of respect for “the will of the poeple”?
    The institutional recognition of a lifestyle choice is not enumerated in the Constitution – the 2nd amendment is.  There is absolutely no comparison, just like there is no comparison to civil rights and gay rights.  At least, not until you can point to a person who chose what color their skin was going to be before birth.

  17. anjin-san says:

    At least, not until you can point to a person who chose what color their skin was going to be before birth.
    Were you born an idiot, or was it a choice you made later in life?

  18. Juneau says:

    @anjin

    Now that certainly was a substantive reply.  When yu have no defense of yur position, always resort to calling the other person stupid for raising the issue.  Liberalism 101.

  19. anjin-san says:

    Your “arguments” rate no real rebuttal Juneau. The last time I actually challenged something you posted, you were chewed into so many pieces that I am a little surprised that you still even show up here. Tell us again how Paul Newman is no liberal. Tell us again how all actors can do is pretend to be other people. I guess you are just used to being bitch slapped.
    What a wretched dwarf of a human being you are. It is a sad, sorry person who actually wants to see second class citizens here in the land of the free. You must have the self-esteem of a gnat.
    It’s been a long day, or I would be more creative with my name calling. You provide a rich vein of inspiration for insults.

  20. Juneau says:

    @anjin

    Still reliving the glory days of your intentional “misunderstanding” of the Newman conversation?  That’s pretty lame, anjin.

    You, kind sir, couldn’t chew me up if I was made of cotton candy.  And by the way, you’re exactly 0 for 4 covering the last few times I have replied with links and references to refute one of your posts.  You have no reply to the obvious, which is why you still rely on braggadocio rather than substance.

  21. anjin-san says:

    Actually, I think I will take a moment to defend my position. I have a co-worker who is gay. He is one of the finest people I have ever had the privilege of knowing. Everyone in our company feels the same way. He is the kind of guy who makes you want to be a better person just by being himself.
    He has been with the same guy for decades. Of course, they have not been able to get married. This has caused needless pain and complications in their lives.
    So yes, I have a good reason for wanting to see gay marriage become a reality. I want this wonderful person to be able to be married to the one he loves, the same way I am. I want everyone here in the land of the free to enjoy this right.
    Kinda funny how the “get government off our backs” crowd is perfectly happy to see the boot of government on the backs of people who frighten them. The modern conservative – scared, angry and stupid.

  22. anjin-san says:

    Still reliving the glory days of your intentional “misunderstanding” of the Newman conversation
    Nope. Reliving your ignorant rant of that day. Not that it is a particularly pleasant memory.  But its easy to see why you would want to try to spin your train wreck of that day into a “intentional misunderstanding”.

  23. Juneau says:

    Three posts from you.  And still nothing.  Methinks it’s because you have nothing to say.  Goodnight.

  24. Juneau says:

    Sorry, you loaded while I replied.  Ignore my previous.

  25. Juneau says:

    He has been with the same guy for decades. Of course, they have not been able to get married. This has caused needless pain and complications in their lives.

    Not that this is reason for changing thousands of years of traditinal marriage – everyine endures needless pain and complication in some area of life –  but I’m interested.  What exactly are you defining as needless pain?

    Also, I’m not frightened in the least by this issue, I just refuse to accept that your friends lifestyle choice should overrule the rules of law and nature.

  26. Michael Reynolds says:

    Interesting that only the morons are really attacking the decision.
    I suspect the conservatives are in the early phases of their inevitable pivot.  Five years from now less than 50% of conservatives will admit they were ever anti gay marriage.  10 years from now they’ll have rewritten their entire history — as they did on civil rights, women’s rights, disabilities, social security, medicare and all the other things they denounced and later embraced.
     
    They’re the “right” in the sense that if you just wait long enough they’ll get it right.

  27. anjin-san says:

    Not that this is reason for changing thousands of years of traditinal marriage
    Yea, we don’t want to mess with those thousands of years of tradition. What are some of the other traditions? Oh yea. The wife is the property of the husband. She can’t refuse him sex.  He can beat her. He can kill her. He can lock her away from view. He can tell her what to wear.
    You know, the kind of things that cause conservatives to call Muslims barbaric. Of course we are not barbarians, because WE BROKE WITH THOUSANDS OF YEARS OF TRADITIONS REGARDING MARRIAGE.

  28. Juneau says:

    Look, both of you (anjin and Reynolds), I’m going to say this just as sincerely as I can, and I truly hope that you actually read what I have to say, and can hear the honest intent behind it.

    The issue is not gay marriage.  I have absolutely, positively no problem at all with taking the positin that you or anyone else can live out their choices any way that they want, and I can live out mine.  This is the way I live my life.  You are free to do as you please as long as you don’t pose a danger to me or mine, and I ask the same from you. 

    The issue is the fact that yu want to force me to take the view and position that the lifestyle choice of homosexuality is good and beneficial.  I don’t believe that, just as I don’t believe that it is good and healthy for men to sleep with every woman that they can talk into it, or for a girl to be promiscuous.  I certainly will teach my daughter that this behavior is bad and unhealthy.  I will also teach my daughter that the homosexual lifestyle is unhealthy.  Because that’s my belief.

    There is nothing that makes the personal choice of homosexuality any different from the personal choice to be sexually promiscuous as a heterosexual.  I would not accept without censure my daughter exhibiting a tendency to indiscriminately have sex with many partners, and there is no substantive difference.  They are both lifestyle choices.
     
    But you want to insist that I not only accept your right to do as you choose but also insist that I cannot teach my children my conviction that it is unhealthy.  You want to institutionalize not tolerance of homosexuality, but approval.  You want to insist that the school my child attends teaches her that homosexuality is exactly like heterosexuality.  Obviously, from both a statistical and physiological standpoint, it is not.  What makes gays special, that they feel they should have the right to dictate to me how I make personal decisions and beliefs? 

    In short, you want to remove my right to teach my children my values and my convictions about how to achieve (or at least strive) to live a successful and healthy life.
    What gives you a right to do this – to force this on me and others – simply because you demand pure approval of the choices of gay men and women?  Why is it not enough for me to allow you to live out your life choices in peace, expecting the same courtesy from you? 

    This is the issue.

  29. anjin-san says:

    The issue is the fact that yu want to force me to take the view and position that the lifestyle choice of homosexuality is good and beneficial.
    I don’t give a rats ass what you think. I don’t want you and your ilk to be able to insist that some Americans live as second class citizens. If you want to teach your children to be bigots, that is your right. I can only pity them.  Your rant on how I want to choose how you run your life is simply another one of your ignorant rants. I don’t give a crap if you approve of gays. Just don’t try to tell them how to run THIER lives.

  30. Juneau says:

    @anjin

    Spoken with true tolerance of anothers sincerely held opinion.  Oh, well. Can’t say I didn’t try…

  31. Herb says:

    The issue is the fact that yu want to force me to take the view and position that the lifestyle choice of homosexuality is good and beneficial.

    Who’s forcing you to take that view?  Think homosexuality is disgusting.  Throw up in your mouth whenever you see one.  Who cares?  The world doesn’t operate solely to meet with your approval.
     
    Take Megan Fox, for instance.  I was quite upset when she married that 90210 douchebag.  I didn’t approve.  But that doesn’t give me any right whatsoever to interfere with their personal relationship.  None.  None at all.
     
    This isn’t about you, Juneau.  This is about right and wrong.  And it’s wrong to give people like you veto authority over the relationship status of gay people.

  32. Herb says:

    “Spoken with true tolerance of anothers sincerely held opinion.”

    Oh please.  You want to give lectures on tolerance now?  You’re opposed to gay marriage because you don’t like it personally…and you’re the victim?
    Weak.

  33. An Interested Party says:

    “At least, not until you can point to a person who chose what color their skin was going to be before birth.”

    This statement assumes that gay people “choose” to be gay…just some silly little “lifestyle” choice that they decide to make…certainly many homophobes believe this to be the case…I wonder how many others believe it, though…

    “The issue is the fact that yu want to force me to take the view and position that the lifestyle choice of homosexuality is good and beneficial.  I don’t believe that, just as I don’t believe that it is good and healthy for men to sleep with every woman that they can talk into it, or for a girl to be promiscuous.  I certainly will teach my daughter that this behavior is bad and unhealthy.  I will also teach my daughter that the homosexual lifestyle is unhealthy.  Because that’s my belief.”

    This could be extended to other beliefs…

    “The issue is the fact that you want to force me to take the view and position that the lifestyle choice of miscegenation is good and beneficial…I will also teach my daughter that miscegenation is unhealthy.  Because that’s my belief.”

    Tell us, Juneau, if your daughter comes to you one day and tells you that she is a lesbian, will you disown her?  Try to get her therapy?  After all, she will be telling you that she is living a “lifestyle” that you do not approve of…

  34. anjin-san says:

    This isn’t about you, Juneau.  This is about right and wrong.
    Amen.
    I don’t care what you think Juneau. Really, you can’t imagine how little I care. I don’t care what you approve of, and I have never said anything that would lead you to think otherwise. My view is that schools should teach academics and not much else. I never said homosexuality is beneficial and good. Please show us anything I have ever said that would support your claim that I want to dictate these things to you. Turn off the  talk radio for a few minutes and put your brain in gear.
    Where on Earth are you getting this nonsense from?
    If we were to honor those ancient traditions of marriage that you express so  much respect for, your daughter, who you obviously love, would get married and become property. She could be abused, beaten, raped or killed at her husbands pleasure. But hey, don’t let me confuse you with reason. Go forth an be angry and small minded. You are, after all, a conservative.

  35. anjin-san says:

    Oh, well. Can’t say I didn’t try…
    Excuse me?? Once again, please show me anything I have EVER said that would lead you to believe that I want homosexuality taught in the schools. That I want to FORCE you to approve of it. That I want to dictate what you teach your children.
    You made a bunch of crap up about how I want to run your life , and now you are putting that forth as a sincere attempt to reason with me. Give me a break.
    Why is it not enough for me to allow you to live out your life choices in peace,
    Except you are denying gays the right to live out their life choices in peace. Equal justice under the law is for everyone, not just people who want to marry someone you approve of.

  36. floyd says:

     
    “”If we were to honor those ancient traditions of marriage that you express so  much respect for, your daughter, who you obviously love, would get married and become property. She could be abused, beaten, raped or killed at her husbands pleasure. “”””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””””
     
     What a load of wet flatulence!

  37. anjin-san says:

     

  38. anjin-san says:

    Floyd… have you ever ready any history?

  39. anjin-san says:

    http://law.jrank.org/pages/7456/Husband-Wife-Property.html
    Historically, wives were at a disadvantage as property owners. At common law, when a woman married, her personal possessions were considered to be the property of her husband. In addition, the husband was entitled to use the land she owned or subsequently inherited, and to retain rents and profits obtained from it. A married woman’s right to own property was not incorporated into U.S. law until the mid-nineteenth century, with the Married Women’s Property Acts. These laws allowed husbands to permit their spouses to own separate property. Women were also granted the right to enter contracts, sell land, write wills, sue and be sued, work without their husband’s permission and keep their earnings, and in certain jurisdictions sue for injuries caused by their husbands.

    Read more: Husband and Wife – Property – Property, Spouse, Husband, Wife, Separate, and Distribution http://law.jrank.org/pages/7456/Husband-Wife-Property.html#ixzz0vsVTQFxO

  40. anjin-san says:

    http://law.jrank.org/pages/7460/Husband-Wife-Domestic-Abuse.html
    It was once presumed that a husband should have the right to exert physical control over his wife, if only to protect himself from liability for his wife’s actions. Therefore, common law permitted a husband to discipline his wife physically. Interspousal TORT IMMUNITY made it impossible for a wife to succeed in an action against her husband

  41. anjin-san says:

    http://www.helium.com/items/497107-the-life-of-women-in-ancient-greece
    Some interesting tidbits about the lives of married women in the cradle of western civilization.