Could Supreme Court take gay marriage off the table in 2016?
Yes, but not immediately and not entirely. Even if the Supreme Court rules for gay marriage, the issue won’t disappear for Republican presidential candidates.
In recent times, a conventional wisdom has begun to take hold on same-sex marriage: that come June, the Supreme Court may recognize a nationwide right to such unions, and if it did, that would let Republican presidential candidates off the hook.
The American public’s support for gay marriage has grown dramatically in recent years, and is now at around 60 percent. Approval by young voters, those age 18 to 29, is closing in on 80 percent. Those numbers formed an arresting context to the arguments Tuesday at the Supreme Court on same-sex marriage.
“Public opinion has rendered its verdict on the morality of gay and lesbian relationships,” writes Republican pollster Whit Ayres in his new book “2016 and Beyond.” “The only question is whether the Republican Party will acknowledge and adapt to this new reality.”
If the Supreme Court legalizes gay marriage nationally, the Republican presidential field will probably splinter – though all within the context of opposing the decision.
Some candidates are likely to call the matter “settled law” and try to change the subject. Think Sen. Marco Rubio of Florida and likely candidate Jeb Bush, the former governor of Florida. Both men seem to have their eye on general election voters even as they focus on the primaries. In recent days, Senator Rubio has said he would be willing to attend a gay wedding, and that he believes gay people are born that way.
In January, when same-sex marriage became legal in Florida, Mr. Bush said that “we have to respect the rule of law” and called for respect on both sides of the issue.
But other Republicans making a more focused appeal to social conservative voters – candidates like Sen. Ted Cruz of Texas – would be expected to double down on their opposition to same-sex marriage. Last week, Senator Cruz filed two bills, including an amendment to the Constitution, aimed at protecting states that still ban gay marriage.
Other likely candidates – former Sen. Rick Santorum of Pennsylvania, former Gov. Mike Huckabee of Arkansas, and Gov. Bobby Jindal of Louisiana – are also firmly wooing religious conservative on this issue. Last week, Governor Jindal penned an op-ed in The New York Times with the headline, “I’m Holding Firm Against Gay Marriage.”
In the GOP primaries and caucuses, which begin early next year, opposing gay marriage is the safe position. About two-thirds of Republican voters oppose gay marriage. And in states that hold caucuses, which favor the most diehard political activists, strong social conservatism is the safe position.
The challenge, then, will be for the eventual Republican nominee to pivot toward a general electorate that is far more accepting of gay marriage, without alienating social conservatives. But Republicans also need to attract far more young voters than they have in recent cycles – and a bloc that overwhelmingly supports gay marriage.
In the long run, a Supreme Court that legalizes gay marriage nationwide takes Republicans “off the hook,” says Democratic pollster Celinda Lake. But, she adds, there will still be many other issues affecting the lesbian, gay, bisexual, and transgender community that remain to be resolved, such as workplace discrimination and transgender rights – regardless of what the Supreme Court does on gay marriage.
And of course, the high court may uphold the gay marriage bans at issue in some states. The justices were sharply split in Tuesday’s arguments. Justice Anthony Kennedy, considered the swing justice in the case, raised questions about changing the definition of an institution, marriage, that has been around for “millennia.” One possibility is for the justices to keep the marriage bans in place but require states to recognize gay marriages that take place out-of-state, the other question before the court Tuesday.
If the Supreme Court comes in with anything less than full recognition of same-sex marriage rights in June, the issue will burn hot all the way to Election Day.