2 years ago
The first time he was asked about the opinion overturning Roe v. Wade — when a draft of last week’s ruling leaked in May — President Joe Biden quickly turned the focus away from abortion. Instead, he brought up another right that he said would be threatened if the Supreme Court determined that the Constitution included no guarantee of privacy. “Does this mean in Florida they can decide to pass a law saying same-sex marriage is not permissible?” he asked.
Remarks like Biden’s stand out because of how sparsely Democrats have spoken about the topic since the U.S. Supreme Court in 2015 struck down state bans on same-sex marriage. In a divided country, what was once among the most fractious issues is today a subject of surprising consensus, with 70 percent of Americans, including most Republicans, and majorities in nearly every state in the country, supporting the right of same-sex couples to marry.
Justice Clarence Thomas breathed life into Biden’s hypothetical, arguing in a concurring opinion that the court’s reasoning in the abortion case should prompt it to also revisit a pair of cases related to same-sex relations. Democrats often quake when they see LGBTQ issues pushed into the public sphere by their opponents, most recently with Florida’s so-called “Don’t Say Gay” bill and a spate of state laws targeting transgender youth and families. Democrats’ usual response is to call such measures cynically diversionary, and insist disdainfully that they would rather be talking about weightier, urgent matters like healthcare or the environment.
There are reasons to be skeptical that, even if it now built a legal foundation, the Supreme Court will ever revisit its landmark gay-rights cases. But it still might actually be politically wise for Democrats to start talking about gay marriage again. The massive and still growing popularity of the gay-rights movement’s signal political achievement lets Democrats flip the script and make the culture wars work for them. Now the left can grab a non-urgent LGBTQ-rights question, like eliminating dormant bans on gay and lesbian unions, manufacture a panic that the American way of life is under threat, and force votes in a way that will rile up the party’s base, align with the preferences of moderate independents and help split the opposing coalition. Reigniting the debate over same-sex marriage could give Democrats the perfect wedge issue.
From the moment the marriage debate emerged in the mid-1990s, ambitious Democratic politicians reflexively ran away from it. Bill and Hillary Clinton, John Kerry, Barack Obama and Joe Biden all were opposed to changing marriage laws but backed the introduction of civil unions and were generally ambivalent about measures to restrain courts from looking at the issue. In every instance, the political tradeoffs were apparent: Key parts of the Democratic coalition, including those overrepresented among the party’s donors and activists, were eager to win marriage rights, while the vast persuadable center of the electorate was resistant. When Clinton in 1996 signed the Defense of Marriage Act, polls showed only 27 percent of Americans supported the right of same-sex couples to marry.
In the years that followed, opponents of same-sex marriage initiated political battles to block legalization in more than three dozen states, but national attitudes moved briskly in the other direction. By the time in 2011 that Obama decided he was ready to announce his support, Gallup found that 53 percent of Americans supported what activists had begun to call “marriage equality,” including more than two-thirds of Democrats and three-fifths of independents. Obama’s shift helped to unify a party that had been fractured over the matter. That summer, Democrats endorsed marriage equality in their party platform, and in early 2013, nearly every Democrat senator previously opposed declared a change of heart. (Only one apparent holdout to this consensus remains among Senate Democrats: West Virginia’s Joe Manchin.)
By then, the conflict had shifted entirely from the political realm to the legal, sidelining activists and politicians from doing much other than celebrating breakthrough court decisions and presiding over weddings. There was little controversy when Obama had his solicitor general stand alongside plaintiffs suing for marriage rights. The Justice Department’s involvement changed the fundamental posture of legal challenges; no longer were just individual plaintiffs and public-interest litigators arguing state bans were unconstitutional, but now the government of the United States was doing so, as well.
Recognizing their cause was lost, most Republicans went quiet on the issue. There was a brief lashing-out after the Supreme Court’s 2015 ruling in Obergefell v. Hodges — former Louisiana Governor Bobby Jindal proposed abolishing the court in response — and an effort to rally around a Kentucky county clerk who refused to issue marriage licenses to same-sex couples out of religious conviction.
But the frontrunner for the party’s nomination, who announced his candidacy just days before the Obergefell ruling, turned his attention elsewhere. Even as Donald Trump said alternately that he supported “traditional marriage” and would “strongly consider” appointing only Supreme Court justices who would overturn the decision, he also conceded that the matter was “settled, and I’m fine with that.” Despite his inconsistency about the policy in question, Trump did intuitively adopt the posture of the party establishment, that marriage was no longer a fight that would be politically productive for Republicans.
Indeed in the years since, Republican politicians have responded very differently to Obergefell than they did to Roe v. Wade. While congressional Republicans regularly promoted constitutional amendments to ban same-sex marriage starting in 2002, they abandoned those efforts the year Obergefell was decided; on the other hand, analogous Human Life Amendments were introduced for decades after Roe. In confirmation hearings for Trump’s three Supreme Court nominees, the Republican senators who routinely press future justices for their views on Roe acted as though Obergefell had never happened.
But many of the conservative activists who control local party machinery and dominate its nominating contests refuse to follow that lead. After Virginia Representative Denver Riggleman presided over a same-sex wedding in 2019, two Republican county parties in his district expressed their disapproval, passing a censure resolution and no-confidence vote, respectively, setting up Riggleman’s defeat at a nominating convention the following year. (He now says he is no longer a Republican.)
Yet when the national party declined to adopt a new platform in 2020, out of deference to Trump, they passed on their best chance to put the marriage debate behind them. So language in place from four years earlier prevails as the party’s position, condemning two landmark Supreme Court rulings for undermining “traditional marriage and family, based on marriage between one man and one woman.” This weekend, the Texas Republican Party went further, approving a platform that endorsed “the definition of marriage as a God-ordained, legal, and moral covenant only between one biological man and one biological woman” and proposed “withholding jurisdiction from federal courts” to rule otherwise.
But very few Republican politicians have had to address the marriage issue at all in the years since a new national consensus has set in. (Wyoming Congresswoman Liz Cheney dropped her opposition to marriage equality last year only once it became clear her likeliest path to renomination would require Democratic and independent crossover votes.) Some seem plainly unprepared when asked to take a clear position. When an Associated Press reporter pressed Virginia gubernatorial candidate Glenn Youngkin to reconcile his stated objection to same-sex marriage with his concession it was “legally acceptable,” campaign advisers cut off the interview.
Youngkin found himself in a mirror image of the predicament that Democrats once faced on the same issue, having to choose between fixtures of their coalition and the preferences of the broader electorate, with myriad opportunities to get tripped up trying to balance those competing interests.
As soon as the politics around marriage began cutting in their favor, Democrats largely moved on, never fully taking credit for the party’s role in delivering one of the most popular social reforms in recent American history. This may be due in part to party leaders, including Biden, who were against marriage equality far longer than they have been for it. But there is a generation of Democratic officials who can claim to have led on the issue when it was unfashionable, including Governors Gavin Newsom of California and Jared Polis of Colorado, and Vice President Kamala Harris.
New uncertainty around the Supreme Court’s privacy jurisprudence presents Democrats a moment to bring marriage back to the fore. In Congress, they could reintroduce the Respect for Marriage Act, which was drafted to repeal the Defense of Marriage Act but effectively abandoned after the Supreme Court struck down part of the law in 2013. If the court were to one day return to states the ability to ban same-sex unions, the legislation would set a clear standard for which relationships the federal government would have to recognize.
These would likely present difficult votes for Republicans in the House and Senate. Indeed, in only four southern states do Public Religion Research Institute surveys find marriage equality failing to win majority support. Everywhere, backing for same-sex marriage is higher than Biden’s vote share; in some battleground states, like Arizona and Wisconsin, the gap is 20 points or more.
Most of those states still have unenforceable language on their books forbidding recognition of same-sex marriages. In 2020, Nevada became the first to rewrite its constitution to remove anti-gay-marriage language (from a 2002 amendment) and affirm in its place a policy to “recognize marriages of and issue marriage licenses to couples, regardless of gender.” When put before voters, the referendum passed with 62 percent of the vote, 12 points better than Biden did in winning the state’s electoral votes. Earlier this year, New Jersey Governor Phil Murphy signed a bill to codify the legitimacy of same-sex marriages in the state, which had been legalized only through a 2013 trial-court order.
Even though they would have no immediate legal effect, such seemingly technical fixes have still met resistance. After Republicans took control of the Virginia state government earlier this year, they quashed a Nevada-style amendment in a committee vote. Republican leaders in Florida, where PRRI found 68 percent support for marriage equality, kept such a proposal from even getting a committee hearing. Their peers in Indiana killed a measure to raise the minimum marriage age to 18 because a Democratic amendment to abolish “only a female may marry a male” language from the state code would have prompted what state House Speaker Brian Bosma feared would be “a big knockdown, drag-out discussion about it on the floor.”
In many instances, though, Democrats do not need the consent of Republican legislative leaders to force votes on marriage. As in Nevada, where constitutional language was added via referendum, it will have to be removed the same way. By moving marriage questions to the ballot, Democrats will be where they rarely find themselves when LGBTQ politics come to the fore: at once on the offensive, as guardians of an accepted status quo rather than a threat to one.
Raising the salience of marriage equality once more could have broad strategic advantages for Democrats as they attempt to combat Republican efforts to remake their party around “a multiethnic, multiracial, working-class coalition,” as Florida Senator Marco Rubio puts it. Many of the most dominant trends in American life — including patterns of residential segregation, income inequality, partisan polarization and other sorting by cultural attributes and education level — could be expected to reinforce such a socioeconomic divide between the parties. But increased rates of identification as gay or trans, across ethnic, racial, class and geographical lines threaten to undercut it.
Research has long indicated that the biggest driver of liberal attitudes on matters of sexual orientation and gender identity is familiarity with an openly gay or trans person. Immigrant kids are not being born into native-born families, but gay kids are being born into straight families. How long can a working-class party organize itself around traditionalist sexual politics when the children of non-college-educated parents are coming out as gay or trans as readily as those of parents with college or graduate degrees?
There are risks for the cause of gay rights in such a strategy. Attitudes on same-sex marriage were able to move so quickly in part because the ambivalence of Democratic elites, when combined with the fact that it was a policy matter with no natural role for Congress, kept public opinion from polarizing along partisan lines the way so many other culture-war issues have. Returning marriage to political debates, and giving prominent conservatives new reason to speak out against it, could harden resistance among Republican voters who were otherwise moving organically toward support for same-sex marriage.
But it should not require a panic around what the Supreme Court will do on abortion for Democrats to see the value in driving public attention to differences between the parties on marriage policy. While the broad legal questions around the issue are settled, the political debate ended only because Democrats chose to let it. After Roe v. Wade became law, losers of the legal conflict fought to keep the controversy arrive in the political sphere. There is no reason the winners of a landmark court decision can’t do the same thing.
English (US)