In the wake of Friday’s decision by the U.S. Supreme Court to recognize same-sex marriage as a constitutionally protected right, a lot of conservatives are fumbling for an effective response. So far, the results are far from encouraging. Understandably social conservatives feel marginalized. But the majority’s shaky legal reasoning rightly discourages even those on the right who have no strong feelings against gay marriage or actually support it. The willingness of Justice Anthony Kennedy and his four liberal colleagues to bypass both the legislative process and the verdict of voters (both of which were trending in the direction of the pro-gay marriage movement) in order to make new law with only a tenuous connection to constitutional principles strikes even libertarians who are pleased with the results of the decision as a dangerous usurpation of authority. But how can any political movement or party successfully fight on an issue where both popular culture and the political environment have both shifted against you? To listen to some prominent voices, the choices facing the right seem to boil down to impotent rage or sullen silence about the gay marriage decision. But here are four simple suggestions that offer Republicans a way out of what seems a lose-lose situation.
First, don’t try to fight a battle you can’t win. Let’s face it, even if you think the gay marriage decision was an affront to your religious beliefs and/or your constitutional principles, there simply is no getting around the fact that most Americans seem to be well pleased with it. It’s true that a liberal popular culture echo chamber is orchestrating the way everything in the country seems to be bathed in rainbow hues the last few days. But if a critical mass of Americans hadn’t already come to the conclusion that treating the desire of two men or two women to have the state recognize their union as a marriage, the scrapping of traditional notions about the institution wouldn’t have succeeded. The plaintiffs in the case won because they appeared as ordinary citizens seeking equal rights rather than as radicals or revolutionaries. That is something that conservatives must accept. Any response to such an appeal that doesn’t sympathize with those sentiments and recognize their power is bound to come across as hard-hearted if not bigoted. Conservatives may be forgiven for not understanding how things could change so quickly but whereas support for gay marriage was restricted to the margins of our political life only a few years ago (isn’t that right former gay marriage opponents Barack Obama and Hillary Clinton?), it now commands the support of most voters. Any response to the decision that isn’t rooted in that fact is a formula for political disaster in terms
Second, don’t let this issue become a defining issue for 2016. Nevertheless, that is advice some presidential candidates will ignore and with good reason. Some, like Ted Cruz, Mike Huckabee, Bobby Jindal and Rick Santorum see anger about the decision as a way to get social conservative voters motivated to go out and vote. That may work for them in the primaries, but other Republicans should be wary about their citing the 2004 election as the reason why their anger on the issue should be the keynote of the GOP in 2016. It’s true that revulsion at the thought of changing the law to legalize gay marriage helped mobilize support for George W. Bush’s re-election campaign as conservatives turned out in numbers that exceeded their showing in the next two presidential campaigns. But while Republicans failed to energize their base in 2008 and 2012, sensible conservatives understand the ground has shifted on them since 2004. The GOP can win in 2016 but not by pushing the same buttons they used then. The economy and foreign policy after eight years of President Obama’s disastrous policies offer better options for winning issues. The next president doesn’t have to be a fan of the Supreme Court’s decision (and none of the Republicans are) and can back traditional marriage, but that can’t be a major theme of the campaign if the GOP is to win the independent votes they need to carry swing states.
Third, conservatives must defend, not fight the Constitution. The willingness of Bobby Jindal and Ted Cruz to talk about changing the way the high court is chosen or altering the tenure of the justices is red meat for the base but it is also the opposite of the tone conservatives should adopt. The same goes for Scott Walker’s talk about a constitutional amendment opposing the gay marriage decision.
Everybody gets angry at the Supreme Court and often with good reason. That is especially true after a week in which Chief Justice twisted himself into a pretzel in order to find a reason to keep ObamaCare operating and his fellow conservative Justice Anthony Kennedy adopted a tone in his gay marriage decision that made him seem more like a pop culture philosopher or advice columnist than a constitutional scholar.
But anyone who tries to alter the composition of the court by extreme measures always loses the argument. The Founders would not recognize the legal reasoning used at times by Roberts, Kennedy, and the four liberals who are always happy to accept their votes to form a majority. But the role of the judiciary in our constitutional system must be respected. Conservatives who start to sound like a latter-day version of those who wanted to impeach former Chief Justice Earl Warren because of his liberal decisions are marginalizing themselves.
Fourth, and most important, defend religious liberty. As many Republicans have learned on the issue of abortion. Attacking what most Americans think is reasonable — legal abortion in the first months of a pregnancy — isn’t a political winner. But seeking to halt late term abortions that strike an equally large majority as akin to infanticide is both reasonable and puts liberals in the position of having to defend the indefensible.
The same principle applies to gay marriage. Stopping gays from marrying is a political loser, but defending the rights of religious institutions, schools, and ordinary citizens to defend their religious principle that demand they either avoid involvement or sanction in such ceremonies is strong ground to defend. As I wrote last week, the court’s willingness to adopt such a broad conclusion about marriage at the Constitution puts believers in peril of being not just outliers but outlaws. Will schools that ban gay relationships or cohabiting or not recognize gay partners be branded as law-breakers and deprived of tax-exempt status? This issue came up in the oral arguments earlier this year before the court, and the statements of Solicitor General Donald Verrilli make it clear that no one and nothing is safe from the long arm of the law when it is arrayed against liberal orthodoxy, even a newly-minted one like that in favor of gay marriage.
The only thing preventing such an outrageous abuse of government power right now is the whim of the president and the Justice Department that could use the court’s decision in any way it likes. The challenge for the GOP is to stake out the moral high ground in which it can seek to limit the ability of big government liberals to bully those who aren’t interfering with the right of gays to marry but don’t wish to be co-opted by it. You don’t have to be opposed to gay marriage to recognize this threat just as you didn’t have to be against contraception to realize that compelling those who opposed it to pay for it against their will was an affront to religious freedom.
If conservatives stick to these principles, they may not be able to reverse something that most of their fellow citizens back. But they will limit the damage, both to the law and to their political chances in 2016.