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.