What Happens To The GOP If (When) SCOTUS Legalizes Same-Sex Marriage Nationwide?

How will Republicans react if, as many expect, the Supreme Court legalizes same-sex marriage across the nation?

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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 weddingsan 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.

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FILED UNDER: Law and the Courts, 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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Rick DeMent says:

    Ah well they’ll always have abortion.

  2. LaMont says:

    They’ll just move on to the next faux crisis. If there isn’t one readily available they’ll make one up.

  3. Mu says:

    If the GOP would be clever, they’d use it to temporarily suppress their “pro-life” faction and get away from the “war on women” issue. Then they can let it fade away and hope that no one jumps back on the family values wagon, therefore giving them a chance to broaden their electoral base. As this is the Republican Party of 2014 we know they will pile onto the family value message to exclude even more potential voters but attract more hard core primary voters and donors. Not sure yet if the 2016 nominee will be greeted with a “Heil” or a genuflection.

  4. legion says:

    Step #1: Blame Obama.
    Step #2: a Constitutional amendment banning it becomes top priority… just like Ebola was.

  5. al-Ameda says:

    For now, the “War on Christmas” will probably suffice.

    In the long run they’ll always have, in no particular order – “voter fraud” “abortion” “school prayer” “main stream media” “(too much) gun regulation” and “(reverse) racism” to dissemble and misrepresent to the nation.

  6. JohnMcC says:

    “Some Republicans, such as Mike Huckabee and Senator Ted Cruz have spoken out against the decision for what are blatantly political reasons….” I bet that belief in heterosexual marriage being the only true marriage is a pretty deeply felt principle of both those gentlemen. Any political campaigning they do might or might not be ‘blatantly political’ (all motives are mixed including mine and yours) but probably reflects their true convictions. I doubt implying they are hypocrites improves the quality of the discussion.

  7. JohnMcC says:

    @al-Ameda: Are you predicting the end of BENGHAZI!? Surely not. Must be an oversight.

  8. al-Ameda says:

    @JohnMcC:

    Are you predicting the end of BENGHAZI!? Surely not. Must be an oversight.

    Well, I was thinking of the long run, but I freely admit, “Benghazi!!” could well go on and on – especially if Hillary Clinton runs for and is elected President (god, that would cause Republican heads to explode).

  9. CET says:

    It’ll be good for the party in the long run, though I’m sure Cruz, Huckabee, et al will pitch a fit in the meantime. The GOP has been on the wrong side of this for, well, pretty much ever.* Providing one less issue on which candidates are expected to cater to the evangelical nutjob wing of the party won’t hurt either.

    The ‘religious liberty’ counter arguments are going to be problem. If the Left were smart, they’d ignore it, particularly in the context of individual businesses – if some bigot doesn’t want to cater a wedding between two gay men, forcing the issue isn’t going to do any good (and sets some weird precedents), and it will just give the evangelicals one more thing to whine about. Besides, demographically, that’s an issue that will take care of itself over the next decade or two.

    *Providing a legal framework for same-gender couples to support each other and raise children strikes me as an obviously pragmatic and conservative position that is pro-family and a whole lot more productive than marginalization.

  10. C. Clavin says:

    With the economy now shaking off the effects of their sabotage and recovering more strongly…and a democratic foreign policy that, while it cannot be reduced to a bumper sticker, is rather successful…Republicans have little else but culture wars to run on. They can rile their base with anti-immigration rhetoric…but that’s not winning a general election. They can run on the Keystone Pipeline I suppose. How do you build a party platform on nothing? Fear and hate is only going to go so far.

  11. stonetools says:

    I expect they’ll double down on enabling anti-gay bigotry. Next step-“religious freedom” laws to protect the “right” to discriminate against the gays. Also too , a drive to elect Presidents that will select “truly conservative” judges that will overturn the Supreme Court decision and uphold the “God-given” principle that marriage can only be between a man and a woman.

    After all, the Republican’s economic platform of coddlying the rich is actually unpopular. The only way they can get enough votes to win is to drive those “values” voters to the polls to vote in candidates who will loudly profess their allegiance to “traditional values”to get elected, then turn around and vote to cut taxes on the rich.

    So yeah, the culture war will continue. Gotta cater to the rubes.

  12. Kylopod says:

    @JohnMcC: I think it’s true belief in the case of Huckabee. Cruz I’m not so sure about.

  13. stonetools says:

    @CET:

    Providing one less issue on which candidates are expected to cater to the evangelical nutjob wing of the party won’t hurt either

    What you and Doug don’t like to think about is that this “wing” is the Republican base. So, no, they can’t just ignore them.

  14. ernieyeball says:

    I think it’s true belief in the case of Huckabee.

    What the Huckster believes is not important. The fact that he wants to use the method of bullys, thugs and criminals to intimidate Citizens to kowtow to the party line is what makes him dangerous.

    …all Americans would be forced, forced — at gun point no less — to listen to every David Barton message. And I think our country would be better for it. I wish it’d happen.

    http://thinkprogress.org/politics/2011/03/31/154984/mike-huckabee-david-barton/

  15. Kylopod says:

    @C. Clavin:

    They can rile their base with anti-immigration rhetoric…but that’s not winning a general election.

    The trouble is, they don’t need voter agreement with their policies in order to win a general election. In 2000, they proved that even an excellent economy under Democrats doesn’t necessarily stop them from (sort of) winning office. As encouraging as the economic indicators are now, we are not in anything like the late-’90s boom, and Obama is far less popular than Clinton was at this point. Plus, history suggests that it isn’t easy for a party to retain control of the White House for more than two terms, and I’m not convinced Hillary’s skills as a candidate are as fantastic as many people assume.

    Marriage and immigration are certainly albatrosses around the GOP’s neck, and they’d be in a better position politically if they discarded their current positions on these issues, but they also have demonstrated considerable skill at hiding or obfuscating their unpopular views so that a large chunk of voters aren’t even aware how much they disagree with the GOP.

    Additionally, the party has a real knack for nominating candidates who are widely perceived as moderates while running campaigns that are anything but. Romney ran on what was probably the most right-wing platform in the history of presidential elections. Jeb Bush, who unlike Romney actually has a very conservative gubernatorial record, is perceived as a moderate. The same is true of Chris Christie, who may be too damaged by the bridge scandal to be a viable candidate by now, but who did pull off the feat of governing as a conservative in a blue state and retaining his popularity. It’s conventional wisdom that the public prefers moderates to extremists, but those concepts tend to be defined more by image than by substance, and the GOP still knows how to sell an extremist package in moderate wrapping.

  16. stonetools says:

    @Kylopod:

    You’re right on most points here.

    they also have demonstrated considerable skill at hiding or obfuscating their unpopular views so that a large chunk of voters aren’t even aware how much they disagree with the GOP

    It’s not just skill, its also massive messaging incompetence by the Democrats. The good thing is that the Democrats are showing some signs of coming up with a coherent message that distinguishes them sharply from Republicans. This is coming more from Elizabeth Waren than Clinton or Obama, but it seems the party leadership is listening.

  17. gVOR08 says:

    I got your next social issue for the GOPs right here: https://www.outsidethebeltway.com/poll-find-wide-racial-divisions-over-confidence-in-law-enforcement-and-the-justice-system/ A couple of commenters made the excellent point that this is really a white Republican/Black issue, not White/Black. That was less true in the 60s when Nixon invented the modern version of this game. There were many white Dems who were all for keeping Blacks in line. They became “silent majority” Reagan Democrats, and are now Republicans in the current poll.

    Only two things would prevent the GOPs for going forward with a 60s style law’n order campaign. Polling that says it won’t work or an ethical reluctance to damage the country for political gain. I expect the polling will be favorable, so they’ll go for it.

  18. superdestroyer says:

    Instead of framing the massive win for homosexuals in terms of Republicans, it would make more sense to frame the win in terms of what the Democrats will do next. Will the Democrats move toward having quotas and disparate impact lawsuit for homosexuals or will Democrats push for some form of reparations for homosexuals from not being able to marry in the past. I suspect that reparations will come first.

    What the Republicans plan on doing in 2016 is irrelevant since no Republican candidate stands a chance of winning and past 2016, demographics will eliminate the Republicans as a relevant political party.

  19. gVOR08 says:

    @stonetools: IIRC Carville was part of some focus group work that showed people just didn’t believe how bad GOPs are. They’d ask, ‘Would you be less likely to vote for your Senator so-and-so if he wanted to eliminate Medicaid?’ or whatever. ‘Oh yeah, that’s terrible. I’d never vote for him if he wanted to do that.’ ‘Well here’s a quote of him saying he wants to, are you going to vote for him?’ ‘Oh yes.’ ‘What? Why? You just said this would make you not vote for him.’ ‘Oh he just said that to get elected, he wouldn’t do that.’

    The biggest example of this is Iran-Contra. I think they got away with that largely because nobody believed that they did what they in fact did.

  20. CET says:

    @stonetools:
    I tend to think that the current incarnation of the GOP is in a place similar to the Dems during the 80’s. The ‘Southern Strategy’ (which, IMO, destroyed the party by making it reactionary rather than conservative) is played out. As the population it was built around dies off, the party is going to have to change, and I’m pulling for a party based around a less intrusive government at home and a realist foreign policy rather than a party of retributive law and order at home and a knee-jerk interventionist foreign policy.

  21. al-Ameda says:

    @CET:

    The ‘Southern Strategy’ (which, IMO, destroyed the party by making it reactionary rather than conservative) is played out.

    I’m not quite seeing just how the Republican Party has been destroyed by the very effective Southern Strategy.

  22. C. Clavin says:

    @superdestroyer:
    Hey…we’re still waiting for you to back up your claims from last Thursday.
    https://www.outsidethebeltway.com/blue-trumps-black-and-white/#comment-1988782
    Now you’re back making more specious assertions???
    Until you are willing to back up your BS…maybe you should just STFU.

  23. C. Clavin says:

    @Kylopod:

    a large chunk of voters aren’t even aware how much they disagree with the GOP.

    That’s been working well for them to date.

  24. C. Clavin says:

    Republicans are also going to have to reconcile the real world:

    Health care spending decelerated 0.5 percentage point in 2013, compared to 2012, as a result of slower growth in private health insurance and Medicare spending. Slower growth in spending for hospital care, investments in medical structures and equipment, and spending for physician and clinical care also contributed to the low overall increase.

    with Republican fiction, like this from Turtle-Face:

    “Number one: We certainly will have a vote on proceeding to a bill to repeal Obamacare…we will go at that law [Obamacare] — which in my view is the single worst piece of legislation passed in the last half century — in every way that we can.”

    Their biggest night-mare came true…Obamacare is working…and now they don’t know how to deal with it.

  25. stonetools says:

    @C. Clavin:

    You are far too optimistic here. Consider this voter:

    The Affordable Care Act allowed Robin Evans, an eBay warehouse packer earning $9 an hour, to sign up for Medicaid this year. She is being treated for high blood pressure and Graves’ disease, an autoimmune disorder, after years of going uninsured and rarely seeing doctors.

    “I’m tickled to death with it,” Ms. Evans, 49, said of her new coverage as she walked around the Kentucky State Fair recently with her daughter, who also qualified for Medicaid under the law. “It’s helped me out a bunch.”

    But Ms. Evans scowled at the mention of President Obama — “Nobody don’t care for nobody no more, and I think he’s got a lot to do with that,” she explained — and said she would vote this fall for Senator Mitch McConnell, the Kentucky Republican and minority leader, who is fond of saying the health care law should be “pulled out root and branch.”

    Ms. Evans said she did not want the law repealed but had too many overall reservations about Democrats to switch her vote. “Born and raised Republican,” she said of herself. “I ain’t planning on changing now.”

    Shorter Ms. Evans: “Eff reality and eff my self interest. I’m voting against the n!gg3r in the White House and anyone who works with him .” And she did.

    With voters like that, the Republicans have no reason whatsover to reconcile their failed theories with reality. Such voters are most likely the just the ones who want to continue the war against the ghey as well. The Republicans can’t survive without them, so I expect further catering to them..

  26. stonetools says:

    @CET:

    ‘Southern Strategy’ (which, IMO, destroyed the party by making it reactionary rather than conservative) is played out.

    Yet they still continue to use it, with great effect. The Republican message this election cycle was pretty much “A vote for the Democrat is a vote for the Kenyan black devil in the White House. Ignore anything else.” And it worked, not only in Red States but everywhere else.
    They aren’t going to give up a winning messagge.

  27. C. Clavin says:

    @stonetools:
    Sure…the entire State Of Kansas is just as confused. But that base is shrinking rapidly.

  28. RKae says:

    Abortion, gambling, divorce, adultery, fornication, profanity, and pornography are all perfectly legal and yet a preacher is allowed to call them all sins. Meanwhile, in his congregation, he has people who have committed (or are currently committing) all these sins. And those people have the freedom to walk out if they don’t like their hobbies being denounced.

    The GOP needs to focus on allowing people to have the freedom to call a sin a sin.

    That mayor of Houston who wants to OK every preacher’s sermon is a totalitarian psycho and needs to be the focus of some backlash.

  29. CET says:

    @stonetools:
    Sure – that worked well for them in a mid-term election that they already had a lock on (and in which the Dems made things even more of a route by botching their message).

    If the GOP ever wants another shot at the WH, they need support from the middle – there aren’t many paths to 270 that don’t require OH, CO or NH, none of which are exactly hotbeds of religious fanaticism.

  30. stonetools says:

    @C. Clavin:

    But that base is shrinking rapidly.

    Not sure about that. As to them dying out, remember Ms. Evans has a daughter. What do you think she is carefully teaching her?

  31. stonetools says:

    @CET:

    As we are finding out, maybe you don’t need the White House if you have Congress and the majority of state legislatures. You can do a lot of damage, too, as in here:

    “Reparative therapy” for gay people has been legally proscribed for minors in California and New Jersey. But apparently the political activists in the Texas GOP know better.

    The state’s Republican Party has adopted into its 2014 platform a passage endorsing the practice, which, as marketed by the rapidly shrinking “ex-gay” movement, seeks to “convert” homosexuals into heterosexuals. The American Medical Association, the American Psychiatric Association, and a host of other professional bodies have condemned reparative therapy as damaging to the health of those people unfortunate enough to be subjected to its quack treatment regimens, which range from repeatedly beating a pillow with a tennis racket to “prolonged hugs” intended to let the recipient “feel the strength of another man”—in a totally non-sexual manner, of course.

    What do you think any laws relating to gays in Texas will be like, especially if the Supreme Court takes a hands off attiude re state legislation on gays?

  32. Grewgills says:

    @C. Clavin:

    With the economy now shaking off the effects of their sabotage and recovering more strongly

    They are going to be taking credit for that recovery that they stifled.