The Next Round on Gay Marriage

It would not surprise me if there were six votes on the Supreme Court for getting and keeping the federal government out of the business of recognizing marriages. That would mean that when federal benefits and tax treatment turn on what is or isn’t a valid domestic union,  Washington has to defer to the states, who have historically licensed and defined those arrangements. It would also mean that the Court declined to put the evolving conversation over same-sex marriage beyond the reach of actual voters and state legislatures.

That mixed bag — repealing the Defense of Marriage Act but declining to recognize that same sex marriages are a fundamental national right — would be roughly consistent with how the Roberts Court has navigated politically charged battles: upholding the Affordable Care Act’s individual mandate under Congress’ taxing power instead of the more sweeping Commerce Clause; wiping out the most punitive provisions of Arizona’s immigration law but rebuking the Obama Administration for trying to thwart local law enforcement from sorting out whether criminal suspects even have a legal right to be in the country. To be sure, the high court can look suspiciously like politicians searching for a compromise, but their approach has virtues conservatives relish: appropriate skepticism about Washington’s tendencies to grow by swallowing major chunks of state authority, and deference to a public that still prefers the ballot box and the legislative chamber as the deciding grounds for disputes.

The more unpredictable question is how the left, which has been so ascendant on gay marriage, would react to being invited into a state-by-state contest that, based on the reactions to this week’s arguments, it is hoping to avoid. I will venture two predictions: first, liberals have probably passed through the easiest part of the fight. To date, their strategy has been one of stigmatizing opposition to gay marriage, and guaranteeing a social and professional price in establishment circles for any contrary point of view. It is a course that has built a narrative in the media and run up a string of victories in heavily Democratic states where social conservatives are suspect. National Republicans — who depend on that same media for oxygen and who have to raise cash in New York, Chicago, and Washington boardrooms as much as Democrats do — have been thrown on the defensive.

But if the Court won’t hand out the kind of sweeping victory that seemed possible a few days ago, putting gay and lesbian couples on an equivalent legal footing everywhere means that gay marriage champions will have to venture into deep red states. In other words, the places where a majority of voters have proved immune to the mainstream media’s enthusiasms, and the places liberals are used to writing off. It will put the left in the position of finding common ground with the same faith-oriented, cultural traditionalists that liberals have not only ignored in the Obama era, but that they aggressively marginalized by characterizing them as representative of the dying throes of the Republican base.

Second, there is no reason to think that same-sex marriage will not face the same countervailing winds that every other elite consensus eventually runs up against. There will be the hardened, dismissive attitude toward opposition that always stirs up a populist backlash; the unforeseen consequences that unravel elements of an unwieldy coalition (what will African-Americans make of the inevitability that the single largest class of children in LGBT homes will be the overwhelmingly black foster and adoptive population? How long will it take the fastest rising social demographic under 35–non-married but cohabiting heterosexual couples–to assert their own privacy rights?)

One final note: the likeliest outcome is that the landscape on gay rights will (and should) continue to shift away from the national stage, where it seems to function primarily as a diversion; a pathway for Democrats to reach young adults whose economic prospects deteriorate on their watch, and an easy vehicle for libertarian conservatives to broaden their elite appeal as they stay painfully silent on poverty and the working class’s decline. Diminishing the impact of both cheap moves would be a very good thing.   

  1. Crow
    Artur Davis: The more unpredictable question is how the left, which has been so ascendant on gay marriage, would react to being invited into a state-by-state contest that, based on the reactions to this week’s arguments, it is hoping to avoid.

    Artur: I like the deviousness of your strategy, and it is my hope that the Court will act with restraint, thus giving us the chance to implement it.

    You’re quite right to note the fault lines in Obama’s coalition on this issue (which is why, for so long, Democratic politicians refused to take an open stance in favor of marriage). Many African Americans appear to have resigned themselves to supporting their party’s position on this issue–but that’s more a question of supporting the coalition needed to win and thus enact the parts of the agenda they more staunchly support than it is a blessing for SSM.

    What I like best about this strategy is that it attempts to drive a wedge into the Dem coalition. It plays offense, instead of a circular firing squad on the right, it trains its fire on one weak point in the enemy’s formation.

  2. Herbert Woodbery

    Given the polls and demographic support of young voters, The dems would love nothing more than to have the issue of ssm remain on the political battlefield. The GOP would love for a sweeping pro ssm marriage decision by the Supreme Court. It would allow them to pivot (remember Roe and the abortion battle) from a politically untenable civil rights issue to a scotus judicial over reaching issue.

  3. Chris Campion

    Using the Fed as the vehicle to impose a national cultural norm is not new; they know they can’t win on a state-to-state basis.  Progressivism is not Federalism, as Federalism is truly defined – Progressivism is Centralization, of thought and power.

    If there’s a more effective way to put personal, religious, or other beliefs out of the way to make the more direct and precise argument, then simply put it this way:  ”If you’re asking me if I support SSM, then you’re also asking me if  I think the State has the right to approve and sanction what two free individuals choose to do with their lives.  Which also means that we’re now actively seeking State approval for the choices free people should not need Federal wherewithal to pursue, choices that reside in the individual, not the State.

    And what the State grants, it can also take away.  So you’re asking me to support more State control over our lives, over your life, and that’s just not something I can ever support.  It’s quite like asking if I support the right to heterosexual marriage, too. ”

  4. MJBubba

    This just puts nation-wide homosexual “marriage” off by a year or so.  If they strike down DOMA there will be a rush of cases suing states without SSM to recognize “marriages” from states that do have SSM. 

    Shameful.

    My wife said “don’t let this make you a bitter person.”  I replied that I will not become bitter, but I will become a cheerful seccessionist.

  5. Mothership_Greg
    It will put the left in the position of finding common ground with the same faith-oriented, cultural traditionalists that liberals have not only ignored in the Obama era, but that they aggressively marginalized by characterizing them as representative of the dying throes of the Republican base.

    I don’t think the left will stop sneering at “Red Staters” any time soon regarding this or any other issue, regardless of the Supreme Court’s decision.  There’s not much more than some occasional obligatory hand-waving at the rhetoric in President Obama’s famous 2004 speech these days.  The Other lives in those places, where everyone is racist, homophobic, FauxNews-watching, country music listening, Walmart-going, etcetera, etcetera, ad infinitum.  The ironic preaching against bigotry will continue, unceasing.

  6. LHFry

    We can hope that the Court will adopt the ruling Davis anticipates, but I am not optimistic after listening to the arguments.   There appear to be 4 solid votes for declaring a “right” to marry for homosexuals because the left would benefit from further undermining the institution.    There is then one justice who has bought the sentimental arguments for such a position (Kennedy- it’s for the children, of course) and perhaps another vote for that view (Roberts).   

    One approach conservatives can take, for real life and strategic reasons, is to push now to get the court (or state legislatures) to reiterate state authority to regulate marriage beyond gender:  limit it to two people of the age of majority and not too closely related.   This would cut off or at least delay the larger danger – group marriage.    The advocates for legalizing virtually all relationships as marriages are organized and their lawsuits are ready to go and they are using similar arguments:    children are already being raised in these households, so for their sake we need to call them marriages.     Kennedy would probably buy this argument too.  

  7. rosegarden sj dad

    Nice post Arthur and I agree. And from a strictly personal standpoint I am getting supremely *bored and embarassed* with this topic. Bored because this should be a non issue: the government shouldn’t be involved in defining marriage in the first place, only legal abstractions like civil unions etc. for tax purposes (and the simpler and fairer the better on that). Second, much as I love my conservative colleagues, I am so embarassed by the weird leaps of logic they employ on this issue. The logic goes something like this: 1.) Marriage is the cornerstone of civilization (wait, is that really true? What about property or free markets or laws or division of labor? And what about its 40% failure rate?). 2.) Therefore anything which changes the status quo on marriage is an attack on civilization (and this from a group that doesn’t oppose *divorce* for goodness’ sakes which is a  much huger structural attack on marriage than anything else).

    Let’s move on.

  8. FirstAmendment

    Artur, I agree with you. Perhaps this can become one more example Republicans can use to build public understanding of the proper role of the federal government relative to the states. We need a public civics lesson on a grand scale.

  9. Mickerbob

    I want this fight, need this fight.  The left main move is to look to federal “solutions” in order to circumvent the tough arguments that Red Staters and their kind (myself included) bring when placed at the State level or below.  I want it all pushed back to the States.  Let the people closest to the actual ramifications of these decisions be involved.  d

  10. michael kelley

    Huh.  Artur.  Thank you for this post.  First time I come close to agreeing with you.  Thought you were a Rhino but now am starting to think you are a strategist.  Mea culpa.

  11. Keith
    Chris Campion: Using the Fed as the vehicle to impose a national cultural norm is not new; they know they can’t win on a state-to-state basis.  Progressivism is not Federalism, as Federalism is truly defined – Progressivism is Centralization, of thought and power.

    If there’s a more effective way to put personal, religious, or other beliefs out of the way to make the more direct and precise argument, then simply put it this way:  ”If you’re asking me if I support SSM, then you’re also asking me if  I think the State has the right to approve and sanction what two free individuals choose to do with their lives.  Which also means that we’re now actively seeking State approval for the choices free people should not need Federal wherewithal to pursue, choices that reside in the individual, not the State.

    And what the State grants, it can also take away.  So you’re asking me to support more State control over our lives, over your life, and that’s just not something I can ever support.  It’s quite like asking if I support therightto heterosexual marriage, too. ”

    This_is_Very_well_put!

  12. Astonishing

    I don’t see what’s the big deal about gay marriage.  People need to get with the times. As far as I know, gay marriage is 100% gluten free, so I’m totally cool with it. I just hope the Supremes do the right thing because it’s not fair that everyone can’t marry whoever they want.

  13. LHFry

    It doesn’t appear to me that Davis is arguing for deregulating marriage.  In fact, just the opposite.

  14. Joseph Eagar

    This post leaves me in awe of Mr. Davis’s writing skills.  I’ve tried to make the same points in numerous posts and comments, to no avail, while he neatly sums everything up in a way that’s accessible and clear.

    Let’s hope his message spreads.

  15. Joseph Eagar
    LHF: It doesn’t appear to me that Davis is arguing for deregulating marriage.  In fact, just the opposite. · 8 hours ago

    Only at the federal level, I think.