Social conservatives are unhappy with the Supreme Court’s same-sex marriage decision. The leaders of their organizations pledge to fight it. So do some candidates for the 2016 Republican presidential nomination.
There’s just one problem: None of them say what they are actually going to do about it.
Speaker after speaker at the Western Conservative Summit denounced the Supreme Court for overstepping its constitutional bounds and redefining marriage. Tony Perkins of the Family Research Council said the court “unleashed chaos and moral confusion in our nation.”
Rick Santorum said the court’s marriage ruling was built on lies. Mike Huckabee went after the judicial branch itself. “They are not the supreme branch and they are most certainly not the Supreme Being that can unwrite the laws of nature and the laws of nature’s God, which is exactly what they’ve attempted to do this week,” he thundered.
Part of the reason for this anti-judiciary mood was the Supreme Court’s Obamacare decision too. Huckabee described them both as “two of the most blatant, disturbing, disgusting examples of judicial activism in the history of these United States.” But it was certainly the gay marriage ruling that he thought was unwriting the laws of God.
They all said they wouldn’t give up on traditional marriage. Ted Cruz, who did not appear at the summit, has even baited some of his fellow presidential candidates and Washington Republicans for crying “crocodile tears” over the ruling while being privately relieved that the Supreme Court has taken gay marriage off the table.
Missing is any game plan to achieve a different policy outcome on marriage. Scott Walker has called for a constitutional amendment that would let states define marriage.
That might have been possible 10 years ago, when social conservatives instead mostly united around an amendment that would have defined marriage as a union between a man and a woman throughout the United States. It’s hard to see such an amendment getting a two-thirds majority in Congress or being ratified by three-fourths of the states.
Cruz would bypass the first problem by invoking Article V of the Constitution and proposing the amendment through a convention of the states. But while this would cut Congress out of the picture, the amendment would still have to be ratified by the states.
Others’ ideas seem less workable. Bobby Jindal, perhaps exaggerating for effect, suggested doing away with the Supreme Court altogether. Huckabee has generically criticized the concept of judicial supremacy.
Cruz has also proposed judicial retention elections. That, along with other ideas like judicial term limits or jurisdiction stripping through a simple majority vote of Congress, might prevent future decisions social conservatives won’t like. It won’t reverse the gay marriage decision, however.
Altering the composition of the Supreme Court may help. But it was a Republican appointee who authored the gay marriage decision — the same GOP-nominated justice behind the court upholding Roe v. Wade in 1992.
Five of the last eight presidents elected since 1968 have been Republicans, and Jimmy Carter didn’t get to nominate a Supreme Court justice. Decades of liberal precedents legalizing abortion and curbing organized school prayer still stand.
The default Republican position right now is to push for conscience protections for religious and other institutions that still adhere to the traditional definition of marriage. A move to yank tax exemptions for churches that decline to perform same-sex marriages would probably produce a political backlash that most recent gay marriage court decisions haven’t.
But the dust-up over the religious liberty legislation passed this spring in Indiana, as well as similar bills vetoed in Arizona and Arkansas, suggests that even this is not without political risk. It also revealed that the business community, a major source of funds for Republican campaign coffers, will not rally behind Christian wedding vendors seeking conscience protections, instead endorsing the idea that such protections are tantamount to legally sanctioned anti-gay discrimination.
It may prove difficult to build support for conscience protections beyond conservative circles if social conservatives remain even rhetorically committed to rolling back same-sex marriage. When these protections have won liberal support, it has usually been in exchange for gay marriage or some other advance in gay rights.
Consider the advice Ryan Anderson, one of the most energetic and thoughtful young gay marriage opponents, offered social conservatives in the wake of the Supreme Court. “Ensure that we have freedom from government coercion to lead our lives, rear our children, and operate our businesses and our charities in accord with our beliefs about marriage,” he wrote. “Likewise, we must ensure that the government does not discriminate against citizens or organizations because of their belief that marriage is the union of husband and wife.”
Social liberals would certainly reply that Anderson is denying such freedom and nondiscrimination to others. You don’t have to personally find that argument persuasive to realize that it has actually persuaded many Americans.
It is understandable that social conservatives have been caught flat-footed by these events. Most Republican presidential candidates and leaders of socially conservative organizations came of age politically when gay marriage lost everywhere it was on the ballot, even in deep blue states, frequently by wide margins.
More than 30 states have voted to define marriage as a man and a woman, although the majority of those ballot initiatives are now older. Only three states ever approved gay marriage by popular vote and just eight more did so through legislative action. That means on the day before the Supreme Court brought same-sex marriage to all 50 states, 26 states had gay marriage imposed by court order to 11 that adopted it democratically.
These facts have blinded many social conservatives to rapid changes in public opinion on gay marriage. Arguably even Barack Obama and Hillary Clinton, who both campaigned for president as opponents of gay marriage as recently as 2008, held out longer than they needed to politically. While on the surface same-sex marriage was mostly a product of liberal judges, the voters and most demographic groups were coming to terms with it.
That is, except for the constituencies represented by social conservatives. Republicans and white evangelical Christians still oppose gay marriage by roughly the same margin the country as a whole did when Bill Clinton signed the Defense of Marriage Act in 1996. Senior citizens are only somewhat more supportive.
Social conservatives have been told many times before that they are on the losing side of history, yet somehow neither history nor the political debates on their issues come to an end. Organized social conservatism is substantially the product of supposedly debate-ending Supreme Court decisions on abortion and religion in the public square.
The abortion experience is especially instructive, because Roe triggered the national pro-life movement and shortly after the abortion issue really did look settled in the early 1990s, pro-lifers began making gains in public opinion and at the ballot box. Anderson specifically recommends gay marriage opponents model themselves after the pro-life example.
But pro-lifers were able to abandon a futile quest for a human life amendment to instead focus on making incremental legislative progress, such as enacting parental consent laws or banning particular abortion procedures. Taxpayer funding of abortion was never popular, not even when the pro-choice position was at its peak. You can regulate abortion either less or more, but you either have gay marriage or you don’t.
Right now, we have it. What will social conservatives do?
