As opinion polls keep finding higher popular support for same-sex marriage, Republican strategists have come to dread the issue. A lot of them want it to simply go away – and they think the Supreme Court might oblige them. If the justices rule later this month that same-sex marriage is a constitutional right, they think, the issue will be off the table and no longer able to cost Republicans votes.
This line of thinking is mistaken. If the court says that all states must recognize same-sex marriage, it would put Republican candidates in a worse bind than they are in already.
Most Republican candidates for federal office, and especially for president, oppose same-sex marriage while talking about it as little as possible and not promising to do anything in particular to discourage it. To borrow a phrase from the abortion debate, they are “personally opposed.” It’s a stance they can maintain if the court leaves states with the power to recognize such marriages or not. In that case, the Republican nominee next year would be able to say he opposes same-sex marriage – but acknowledge that many people take the opposite view and that it’s likely to become the law in much of the country.
If, on the other hand, the court sweeps aside laws that define marriage as the union of a man and a woman, it will be harder for Republican politicians to remain quiet. They’d be under pressure from social conservatives to condemn the ruling and to seek a constitutional amendment to undo it. That amendment would be doomed: There’s no way three-quarters of the states would ratify it. But endorsing it would put Republicans exactly where they don’t want to be: in the middle of the marriage controversy.
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Wisconsin Gov. Scott Walker, a likely 2016 candidate, has said that he thinks Republicans should focus on fiscal and economic matters. He doesn’t want to run on social issues. But in an interview earlier this month, he said that if the Supreme Court found a constitutional right to same-sex marriage he’d back an amendment to give power back to the states. Other Republican candidates will surely be under pressure to do the same – Sen. Ted Cruz’s support for the idea was surely part of the reason Walker came out for it.
If the court decides that all 50 states must recognize same-sex marriage, and Walker responds by trying to amend the Constitution, it won’t matter that he wants to talk about economics. He’ll be campaigning, whether he likes it or not, as a culture warrior. If other Republicans join him in that stance, they’ll be saying not only that they oppose same-sex marriage, but that they oppose it so much that they’re willing to amend the Constitution for the first time in more than 20 years to prevent it. That’s a formula for losing the votes not only of activist supporters of same-sex marriage – who weren’t likely to vote for Republicans in large numbers in any case – but of many others who are merely sympathetic to the idea.
A decision that made recognition of same-sex marriage a constitutional obligation would surely elevate the issue in the presidential race, to the likely detriment of Republicans. And if some of the conservative justices on the court are tempted to issue that kind of ruling to help Republicans, they’re doubly mistaken: first in letting a political calculation interfere with their resolution of a constitutional case, and second in getting the calculation wrong.
Many states have been forced by federal courts to grant official status to same-sex marriage. I’m assuming that if the Supreme Court restores freedom of action to these states, marriage licenses already handed out to same-sex couples will still be valid. A decision that entailed invalidating those licenses would generate a strong backlash.
Ramesh Ponnuru is a columnist for Bloomberg View. Reach him at firstname.lastname@example.org.