The Judiciary

GOP should thank Supreme Court for gay marriage decision

If I were Reince Preibus, chairman of the Republican National Committee, I would be sending U.S. Supreme Court Justice Anthony Kennedy a thank-you note this week. Kennedy was the pivotal vote and author of the court’s decision in Obergefell v. Hodges, which outlawed state prohibitions on same-sex marriage. In one fell swoop, Kennedy and four brethren removed an issue that was a net loser for Republicans and did so in a fashion that allowed Republican candidates to drum up support among the base through a favorite activity, court bashing.

{mosads}Of course, one would never know this from the reaction of many Republican contenders for president. From Gov. Bobby Jindal (R-La.), who called the decision an “all-out assault against the religious freedom rights of Christians,” to former Gov. Jeb Bush (R-Fla.), who would have left the issue to the states, not one of the multiple presumed Republican candidates has yet endorsed the decision. That may make sense in the context of a primary contest, but gay marriage is an issue that only would have dragged down the party’s nominee in the coming general election.

Don’t believe me? Look at the polling. Analysis from the Williams Institute at UCLA shows that public support for gay marriage has grown an estimated 2.6 percent per year since 2004 and a whopping 6.2 percent annually since 2012. It is no surprise, then, that a majority of Americans now supports gay marriage, with the numbers continuing to climb. The picture in the Electoral College is even more telling. As of a year ago, same-sex marriage had majority support in every state won by President Obama in 2008. Keeping in mind that Republicans have to win back some of those states if they seek victory in 2016, consider what they are up against in the swing states: Fifty-two percent of Virginians supported same-sex marriage, as did 54 percent of Ohioans, 56 percent of Floridians, 59 percent of Pennsylvanians and 61 percent of Coloradoans. Those numbers have only risen in the last year.

It’s one thing to say that voters favor same-sex marriage and another thing to say that it influences their vote, but same-sex marriage has taken on broader cultural significance, serving as a symbol for how modern, inclusive and tolerant a candidate — and a political party — is. This is especially true among younger Americans, many of whom equate gay rights with civil rights and who, virtually across the ideological spectrum, support same-sex marriage. Lash out strongly against gay marriage and a candidate might as well post the words “old,” “out of touch” or even “prejudiced” on his or her Facebook page.

So, Republicans should be relieved that the court decided the issue, removing from the national agenda a wedge issue that only worked against them. They can say, as did Sen. Marco Rubio (R-Fla.), that the argument is over and that Americans “must abide by the law.” What’s more, they get to beat up on the court for taking the issue out of the hands of voters. It’s an old attack, going back at least as far as Brown v. Board of Education, in which politicians decry the judicial branch for “legislating from the bench.” It’s a powerful argument among the Republican base, particularly those who fear that the cultural pendulum has swung against them and who can transfer their anxiety onto the “five lawyers [who] have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”

That last line was written by Chief Justice John Roberts, whose political acumen rivals that of any in the Republican presidential field. He provided the language to rally the base while at the same time signaling strongly in dissent that gay marriage — or at least tolerance for gays and lesbians — is here to stay. “Many people will rejoice at this decision,” he noted, “and I begrudge none their celebration.” All that was missing was the rejoinder, “please don’t judge me as being on the wrong side of history.” Same-sex marriage is ascendant, Roberts acknowledged, with all the cultural celebration it entails. But he couldn’t bring himself to serve as the legal means to establish the right.

I confess to feeling sorry for Roberts, a bright man who, with the Obergefell decision, will join the likes of past Chief Justices Robert Taney (Dred Scott v. Sandford), Melville Fuller (Plessy v. Ferguson) and Harlan Stone (Korematsu v. U.S.) as having been on the wrong side of this nation’s march to equality. To be sure, refusing to legalize gay marriage is not the same as abiding slavery or permitting internment, but same-sex marriage is the civil rights issue of this era, and politicians who expect to compete in the mainstream should be wary of hindering its progress.

It’s sometimes said that social change comes slowly in the U.S. Slavery ended 150 years ago, and yet we are still talking about race, as President Obama noted in his Charleston, S.C., eulogy last week. By comparison, gay rights has moved at lightning speed. Just 29 years ago, the Supreme Court sanctioned the criminalization of gay sex, and today same-sex marriage is the law of the land with majority support among voters. The message to politicians ought to be clear: The ship has sailed, the fat lady has sung, the game is over. The sooner the Republican presidential candidates understand this phenomenon, the better off their prospects will be in the general election. The Supreme Court just handed them a gift — a chance to push past an issue that held them back and move onto topics where their message might be more competitive. Will they send the justices a thank-you note? I wonder if Hallmark makes a card for the occasion.

Gould is a professor at American University.

Tags Anthony Kennedy Bobby Jindal civil rights Gay Marriage gay rights Jeb Bush John Roberts LGBT rights Marco Rubio Obergefell v. Hodges Same-sex marriage

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