Gay Marriage

Will the Supreme Court End Gay Marriage as an Election Issue?


Will GOP raise white flag of surrender?
Credit: Benson Kua / photo on flickr

If the Supreme Court takes up one of the gay marriage recognition cases coming from the states (now that there's a split in one federal district) within the next year, it could potentially take it off the table as an election issue in 2016. Actually, that would only be the case if the Supreme Court rules in favor of mandating the states recognize gay marriages. Otherwise (if the court affirms the authority of states to ban recognition) the issue will likely bounce back to the states and throw into disarray all the federal rulings about gay marriage for the past year.

Putting gay marriage into the court's hands may make it much less of a political issue come 2016. There will be no more ballot initiatives to use to help get out the vote either way, though there is still going to be plenty of grandstanding and signaling. At the Daily Beast, David Freedlander wonders how it will all play out for the Republican primary. Will possible candidates like New Jersey Gov. Chris Christie and Kentucky Sen. Rand Paul be hurt for their compromise "leave the matter to the states" position?

[T]he presence of evangelical primary voters, especially in Iowa and South Carolina among the early states, means that some candidates will press their advantage.

"You could easily see a situation where a Rick Santorum or a Mike Huckabee are pressing this issue, and you hope that the rest of the field just leaves it to them," said one pro-same-sex marriage GOP strategist.

"Traditionally, the Republican Party supports traditional marriage," said Alice Stewart, a GOP strategist allied with Huckabee. "If Governor Huckabee were to enter the race, he has supported traditional marriage. He always has and he always will."

Personally, it's hard to visualize a President Huckabee or Santorum, even with the plunge in popularity for the Democrats right now. What votes would they actually be able to pick up that Sen. John McCain and former Gov. Mitt Romney could not? Given the winds of change, what exactly is the Republican establishment position on gay marriage recognition anymore? We might not even really know where the party truly stands now until the 2016 national convention.

But it will also be interesting to see how, or if, gay marriage issues play out in the Democratic primaries. The conventional wisdom is that the Democrats are the party who loves the gays, but that's only relative to the Republican Party's position. Vice President Joe Biden voted in favor of the Defense of Marriage Act (DOMA) back when he was a senator. And as the Daily Beast points out, Hillary Clinton's position on gay marriage is essentially the same as Paul's:

Christie, [Scott] Walker, and Paul have all argued that the marriage issue is one better left to the states. Their position is identical to the one held by Hillary Clinton, a fact that delights Gregory T. Angelo, the head of the Log Cabin Republicans, a gay rights GOP group.

"Hillary Clinton has a position on marriage that is to the right of everyone else in her party," he said. "Part of me cannot wait to see her twist herself into contortions explaining why her position is different from her party's platform."

In other words, expect the marriage matter to be a bipartisan affair.

"That is a fact we are certainly going to be reminding Democrats about," Angelo said.

I'm not sure how well that tactic's going to work. Obviously President Barack Obama's own lack of support for gay marriage prior to his second term didn't seem to harm his chances. If somebody like Paul or Christie gets the nomination, I can see them try against Clinton. I'll add that former Gov. Jeb Bush, whose name is being tossed around as a possible GOP nominee, also supports letting the states decide. And while Biden has a past with DOMA, he's going to get the benefit of being the guy perceived as having forced Obama's hand in announcing support for gay marriage recognition.

If the Supreme Court does take up the case and rule prior to the 2016 election, which seems eminently possible, I will be curious to see what the GOP does with that. Will there be the expected "activist court" grandstanding from the likes of Santorum and Huckabee? (Obviously, yes.) Would somebody like Rand use the opportunity to talk about reducing the state's role in marriage entirely? And what will the Republican Party put in its platform about gay marriage in 2016?

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  1. it could potentially take it off the table as an election issue in 2016.

    Kinda like how you never her about abortion since the SCOTUS decision back in the day?

  2. Hey – watch me not care!


  3. Will the Supreme Court End Gay Marriage as an Election Issue?

    At least as well as it ended abortion as an election issue, I’d suppose.

    1. Or, what R C Dean said.

  4. now that there’s a split in one federal district

    No. The split is between the Sixth Circuit and several other circuits. The hierarchy of federal courts (simplified): district courts (all or part of a state), circuit courts aka appeals courts (several states each, plus two special circuits), SCOTUS.

    Resolving circuit splits such as this is one of the main functions of SCOTUS.

  5. “Putting gay marriage into the court’s hands may make it much less of a political issue come 2016. There will be no more ballot initiatives to use to help get out the vote either way”

    That’s okay. If the Progressives don’t find one of our other rights that should only exist depending on the outcome of a popularity contest (like our gun rights), then I’m sure the social conservatives will come up with something.

    I wish they’d both strangle each other.

    1. Newsheadline “”‘In shocker, Supreme Court says that government has no authority to issue marrage licences”””

      1. This is my fond hope.

      2. Newsheadline “”‘In shocker, Supreme Court says that government has no authority to issue marrage licences”””

        No fucking way. That might lay the groundwork to challenging the modern interpretation of the commerce clause.

  6. I will go on record as not supporting same-sex marriage recognition. Also, for the record, I don’t support any marriage recognition. Additionally, I don’t personally recognize anyone’s wedding as something I want to have to attend. Or have to want to attend.

    Having said all that nonsense, if the justices could somehow make it so I don’t have to hear about people getting or not getting their special relationship bennies from the government anymore, I will kiss them all square on the lips. Bonus points for giving Santorum or Hucksterbee less of a platform in the primaries to make it (mercifully) lose in the general. (Bonus points buy SCOTUS handies.)

    1. Joni Mitchell: “We don’t need no paper from the City Hall, keeping us tied and true.”

      Government should get out of the business of “blessing” love relationships and conferring goodies to people based on whether they “commit” to one another.

      (We’ll never see it, but just sayin’…)

      1. Goodies such as establishing legal kinship for inheritance and other legality-related purposes? Or allowing a non-birth parent legal parenthood status?

  7. It would be nice, but I doubt it – 1st – what RC Dean said, and 2nd, Roberts has already shown us all that the SC is susceptible to political pressure. Even if it had the ability to end the importance of it, I don’t think either party would want this wedge issue to die – it’s far too useful to rile up their bases for both.

  8. Naturally, we all know SCOTUS is going to suddenly discover that gay marriage licensing and recognition is required by the Constitution. Its just too fashionable in their circles for them to rule any other way, regardless of the legal merits.

    The fun will really begin when people begin applying its reasoning in that opinion to all kinds of other licenses, occupational and (where the fireworks will be) concealed carry licenses. The FF&C clause has always been kind of a muddle as far as requiring states to recognize licenses issued by other states. It will be hard for SCOTUS to craft an opinion requiring recognition of (gay) marriage licenses in all states without putting down some language that can be used to argue that other licenses have to be recognized as well.

    1. Never undermate the deftness of the legal writing of a SCOTUS law clerk.

      1. underESTImate

      2. I’m frequently underwhelmed by SCOTUS opinions, both in terms of style and substance.

        The trap they fall into is that they are just way too frickin’ long. Being verbose gets you points in academia. Out in the tooth-and-clam world of lawyering, every word you put down is another word for me to argue about.

        1. Tooth and claw. CLAW.

          Although, I am hungry for lunch . . .

    2. The only anti-equality opinions to have come out of the legal system have been universally panned as desperate nonsense. To imply that it’s mere fashion and not sound 14th Amendment legal reasoning is to indicate that you haven’t really been paying attention to the legal arguments.

      1. I’ve put my problems with the Equal Protection Clause argument for gay marriage on record. Basically, I think it assumes its conclusion that “marriage” really means “any two people”, so that “man and woman” is an illegitimate restriction on marriage.

        As a jurisprudential matter, the question being begged is who gets to say what “marriage” really means? Not an easy question, by any means.

    3. FF&C requires the recognition of judicial rulings and gives full force to those. It doesn’t tend to apply full force to things like marriage.

      States recognize the marriage licences of other states voluntarily and courts have confirmed states may do so as long as no fundamental rights are being violated.

      As such SCOTUS will continue to not rule on that issue. Once gay marriage bans fall, not recognizing SSM licences from other states seems rather pointless and in the case of SSM i doubt it would be a tenable long term position.

  9. Bear in mind that, whatever Rep primary voters may think, from the standpoint of the Great and the Good, leaving the matter to the states is *not* a compromise. There is Only One Right Answer – which is to require *all* the states to recognize SSM. Anyone who dares take a federalist approach is the moral equivalent of a racist who wants to leave segregation and lynching to the states.

    Unless “leave it to the states” is an insincere throwaway line, Rand is going to be attacked for his federalist position.

    Also, the Supreme Court is not going to take this matter out of politics. If the SSM advocates get their relationships state-recognized, then we know the next step, because it’s already happening – cracking down on the bakers, T-shirt makers, wedding-chapel owners, tour companies, etc., etc., who persist in upholding the traditional definition of marriage.

    So the Republican candidates will be asked whether they would let some private business inflict discrimination against gay couples on the Happiest Occasion of their Lives, thereby perpetuating the same sort of anti-gay animus as led to the lynching of Matthew Shepard, blah blah.

    And supposing Rand says, “OK, force the states to recognize SSM and force the bakers to bake cakes for Nigel and Clyde,” then the next step will be to attack Rand for “transphobia” – “you would exclude men from the ladies’ room just because they have dangly bits? But these men are really women because they *feel* like women, you bigot!”

    1. Bear in mind that the ENDA, protecing LGBLTs from private discrimination, is *more popular* than SSM.

    2. This and what RC Dean said above!

      Wanna be a firefighter? Training will include carrying an 150lbs. dummy down three flights of burning stairs, carrying a 50 ft. hose full of water to put out fires, and carrying hoses of varying lengths while shirtless in the annual gay pride parade (Female firefighters will be excused due to women’s inability to observe exposed hoses without being raped).

    3. The discrimination in public accomodations is really only an issue in places where they have explicitly added in sexual orientation. Needless to say most southern states have not. And i think that battle likely needs to be won in the legislature.

  10. I don’t think SSM has the same staying-power as abortion as an issue. With the abortion issue one side fervently believes that people are being legally murdered, with SSM the quantity of victims and the quality of the claimed victimhood is much less compelling and visceral.

    1. “one side fervently believes that people are being legally murdered”

      No they don’t. Generally they want to let the initiator of the crime “the woman” get off with no penalty.

      Not murder.

  11. LGBLTs

    What do large, grilled bacon lettuce and tomatos have to do with this?

    1. It was sort of a joke.

      1. Don’t quit your day job, Eddie.

  12. As for Hillary, in the Dem primaries all she’ll have to do is say “Ah have *seen* the laht! Gay marriage forever!” and nitpicking about her former position will be useless.

  13. Liberals don’t believe there is a fundamental right to keep and bear arms, but DO believe there is a fundamental right of a woman to vacuum her baby’s brain out and call it “reproductive freedom,” for a lazy stoner to get high in public and call it “recreation,” and for a man to insert his raging member into another man’s rear end and call it “consummating a marriage.”

    1. Yeah, you tell ’em. Everyone knows that marriages can only be consummated through bukake.

    2. Needs more Mexican.

    3. Then why not call for putting the woman who initiates an abortion up on murder one charges? It is premeditated.

  14. Plenty other minorities for Republicans to scapegoat and harass instead of having ideas.

    1. Scapegoating and harassing is a bipartisan sport, Tony.

      The Dem coalition depends on slicing up the entitlement pie amongst a whole bunch of minority grievance groups. They’re starting to run into trouble, as the pie is only so big, but any time you’ve got a bunch of people wanting a slice of pie, you’re going to run out and have to target somebody for getting less, nothing, or less than nothing.

      1. The only group Democrats can plausibly be accused of scapegoating are the rich, and they deserve it, and they don’t do it nearly enough.

        1. And the bicycle riders.

        2. Ah. Yes. The Rich. Anyone with a job.

  15. Probably so. I could be an interested party in the SCOTUS appeal of Arkansas’ mistake. I will never call Same-Sex-Unions marriage* or believe homosexual, gay, or lesbian are valid adjectives for use with the marriage noun that REQUIRES two genders. ‘Frozen sun’ is the same type use of English to me. Judges might tell us to treat the union like moonlight now used for light coming from the moon because it looks mostly the same and is factually correct but only indirectly. The light still comes from the Sun. Moonlight was accepted for sunlight bouncing of the moon and is a term accepted over time and is accurate, but only indirectly. Free speech per that list of fundamental rights means no belief or definition of any English word may by mandated by a State or by a religion.
    I will not file an amicus in any potential appeal but there are clear secular rational(s) warranting First Amendment arguments AGAINST mandatory definition change for a word. Only time and acceptance by humanity may control the definition of a word. I would accept marriage* or “marriage” but not the word used for real marriages like I have come to know and failed at.
    Just my two cents or the only two scents I have had since I started sniffing around U.S. language lexicology and Benjamin Francklin’s struggle to keep only accepted dictionary words in the Constitution and Noah Webster using the Copy[rite] Act of 1790 to steal or Americanize the word “copyright” from England’s first law text circa 1766.

  16. If SCOTUS affirms Gay Marriage, it will do to it what it did to Abortion, which is to make it an electoral issue for ever more.
    What they should do is to allow the legislatures of the several States to decide by legislative action what the position of that state should be – and to be honest by reversing Roe and throwing that back to the states also.

  17. “Hillary Clinton has a position on marriage that is to the right of everyone else in her party,” he said. “Part of me cannot wait to see her twist herself into contortions explaining why her position is different from her party’s platform.” Ten bucks says she channels Eleanor Roosevelt and has an epiphany that SCOTUS should decide.

  18. Biden is a Prohibitionist.

  19. The gay marriage debate has moved on to “religious exemptions.” It is generally accepted by political leaders on both sides that gay marriage will be implemented nationally before the next presidential election.

    What is becoming points of contention are “religious liberty” exemptions. There should be no problem – though some will vehemently disagree – with religious organizations not having to recognize same-sex marriages when these organizations and their representatives are advancing the organizations’ religious mission.

    What is being advocated is allowing businesses and professionals to not provide products or services to support same-sex marriages if owners or workers have religious objection to these marriages.

    Discriminatory practices in this case would not be personal religious freedom but rather a personal value that is extended to the general public, and therefore should not be allowed.

    The Hobby Lobby case not being applicable (the employees get contraceptive, etc. health coverage through the company’s insurance company regardless of the legal semantics), I can only think of one religious conscience exemption this country has ever applied to its law: for the draft.

    I see this exemption as a practical response rather than a religious freedom issue as why would we want someone watching the backs of fellow soldiers and support staff who wouldn’t shoot the enemy?

  20. The courts are not affirming or opposing “gay marriage”. They are ruling on equal protection. Marriage offers certain financial and legal rights to heterosexual couples who choose to be in a committed relationship. There is no way to justify denying those same LEGAL rights to a gay couple because you have a MORAL objection to their lifestyle. The claim that overturning same sex marriage bans is redefining marriage is crap. Defining marriage is a religious issue, not a legal one. However the recent cases where the courts have ruled businesses must serve gay couples is another issue and that will need to be reviewed and decided by the SCOTUS. However, this argument is a no brainer. You either follow the Constitution or you don’t, period.

    1. Exactly, religious concerns apply to churches and their organizations promoting their faith and principles. Civil institutions and programs must be available to all regardless of sexual orientation.

      Per my arguments in my posting of 12/9, it is incomprehensible to me that businesses should be allowed to discriminate on the basis of the gender of married parties in providing services and products.

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