On Tuesday, the Supreme Court will hear opening arguments in marriage equality cases challenging state bans on same-sex marriage. The resulting ruling could legalize same-sex marriage nationwide.
A lot has changed since the Court overruled the part of the Defense of Marriage Act that applied to the federal government. Lower courts have used that ruling to overturn state bans on same-sex marriage. As a result, 37 states have legal same-sex marriage. The tide of public opinion has turned, and now a growing majority of Americans support marriage equality.
Perhaps the biggest indicator of how much times have changed is how Republican presidential candidates have responded. Having lost marriage equality as a wedge issue, some of the GOP candidates have tried to have it both ways — satisfying their vehemently anti-equality base while assuring the growing majority of Americans who support marriage equality that they’re not that extreme.
- Sen. Marco Rubio (R-Fla.) developed an acute case of “triangulation strangulation” when a reporter asked him if he would attend a same-sex wedding. According to his statements, Rubio is against same-sex marriage, but would attend one. He thinks states should be able to prohibit it, but citizens can vote to recognize it, though he hopes they won’t. On the other hand, Rubio believes that “sexual preference is something that people are born with,” and wants gays and lesbians to know “I’m not going to hurt them.” (Apparently, Rubio doesn’t think discrimination hurts.)
- Wisconsin governor Scott Walker considers the issue already settled for his state, thanks to a federal court decision last year. But Walker went out of his way to position himself on both sides of the fence. Asked if he would attend a gay wedding, Walker reaffirmed that “my position on marriage is still that’s defined between a man and a woman,” and added that he hasn’t been to a same-sex wedding, “But for someone I love, we’ve been at a reception.”
- Sen. Ted Cruz (R, Texas) is calling for a constitutional amendment requiring the federal government to defer to states on marriage equality questions. Yet, Cruz softened his position at a gay fundraiser in Manhattan. A the event, Cruz reportedly claimed that if one of his daughters were gay, “I would love them just as much.” (No word on whether he’d walk them down the aisle.)
- Louisiana governor Bobby Jindal wants his state to pass a “religious freedom” law that’s even worse than Indiana’s, but says he would “absolutely” attend the same-sex wedding of “somebody I loved and cared for.”
- Ohio governor John Kasich, whose marriage ban will be before Court tomorrow, told CNN that he had plans to attend a gay friend’s wedding despite his personal opposition to same-sex marriage. (Columnist Dan Savage said Kasich’s position both humanized him and painted him as “an ideological basket case.”)
Democratic candidate Hillary Clinton’s position makes a start contrast. Clinton recently called on the Supreme Court to legalize marriage equality for the whole country. Clinton “came out” in support of marriage equality in 2013 when she still served as Secretary of State. And while Clinton’s “evolution” on the issue may be viewed with some cynicism (as recently as 2008, she still said she believed marriage was a union between one man and one woman) the process was about aligning her personal position in the issue with her political position.
When the tide of public opinion shifted in favor of marriage equality, all Clinton had to do was move with it. Whereas Clinton’s move brought her close to the Democrats progressive base, Republicans struggle against it to stay close to their own. According to a recent ABC/Washington Post survey, 61 percent of Americans — six in ten — say that same-sex couples should be able to marry legally. Reviewing past versions of the poll shows the evolution of public opinion.
- As recently as 2006, only 36 percent of Americans said same-sex marriage should be legal.
- By 2009, 49 percent of Americans supported legal same-sex marriage.
- In 2011, for the first time a majority of Americans — 53 percent — supported marriage equality.
The gulf between the GOP and the American public on marriage equality is only likely to grow. Support for marriage equality falls to 46 percent among seniors, but it peaks at 78 percent among adults younger than 30.
Republican candidates were recently busy courting evangelical voters at the Iowa Faith and Freedom Summit. Every candidate and likely candidate condemned marriage equality at some point. It may not do them any good. Even in the all-important early GOP caucus states, the ground is shifting. A NBC/Maris poll last month showed that around half of the GOP caucus voters in Iowa, New Hampshire, and South Carolina find opposition to same-sex marriage “totally” or “mostly” unacceptable.
The debate has moved away from the old “gay marriage vs. the church” frame. A recent poll by Public Religion Research Institute reveals that while white evangelical Protestants opposed marriage equality by a 28 to 66 percent margin, white mainline Protestants support it by a significantly higher margin of 62 to 30. Despite their church’s teaching, U.S. Catholics support marriage equality by a 60 to 30 margin.
The U.S. Presbyterian Church voted to recognize same-sex unions, making it the largest American protestant denomination (with 1.8 million members) to embrace marriage equality. Leaders in the Episcopal Church, the United Church of Christ, the organizations of conservative and reformed Judaism, as well as more than 1,900 theologians signed an amicus brief urging the court to legalize same-sex marriage.
The corporate world realizes that discrimination is bad for business.
- a brief urging the court to strike down same-sex marriage bans wassigned by 379 corporations. Together they spend about $1 billion a year negotiating a patchwork of state marriage equality laws as they struggle to managing changing rules on tax policies, employee benefits and other administrative issues.
- Twenty-eight of the biggest financial firms — twice as many as in 2013, when the Court struck down DOMA — filed an amicus brief urging the court to strike down remaining state bans on same-sex marriage.
- No top-tier law firms — the same ones that defend the tobacco industry and corporations that poison poor communities — would take up the case against marriage equality before the Court, for fear of losing clients or alienating employes.
Meanwhile, conservatives are resorting to rhetoric and tactics that reek of desperation.
- Rep. Steve King (R-Iowa) introduced the “Restrain Judges on Marriage Act of 2015,” which strips federal courts of any ability to hear cases involving marriage equality, effectively ripping Article III out of the Constitution. (In response, Colorado Democrat Rep. Jared Polis, who happens to be the only gay dad in Congress, issued a press release announcing the satirical ”Restrain Steve King from Legislating Act,“ preventing King from ”abusing taxpayer dollars by substituting the judgments of the nation’s duly serving judicial branch of government with his own beliefs.”)
- This year, more than a dozen states are considering Indiana-style “religious freedom” laws.
- Attorney Gene Shaerr wrote on the Heritage Foundation’s website that “nearly 900,000 more children of the next generation would be aborted as a result of their mothers never marrying,” if the Court legalizes same-sex marriage.
- The Family Research Council warned that striking down same-sex marriage bans would somehow jeopardize the separation of church and state. (This, from people who didn’t even believe in such a separation until just now.)
- A group of “same-sex oriented men,” in “mixed-orientation” marriages to heterosexual women, filed a brief with the court warning that legalizing same-sex marriage would send “a harmful message that it is impossible, unnatural, and dangerous for the same-sex attracted to marry members of the opposite sex.”
- States with same-sex marriage bans before the court have argued that: gaining marriage through court order rather than a popular vote would “demean” same-sex couples (Michigan); that same-sex marriage bans aren’t discriminatory, because they apply equally to heterosexuals (Kentucky); that overturning state bans on same-sex marriage will make those who voted for it feel “violated” (Ohio); and legalizing same-sex marriage would somehow cause heterosexuals to stop reproducing (Tennessee).
Republican presidential candidates trying to satisfy their ever-shrinking white evangelical base and the growing majority of Americans who favor marriage equality will find it impossible to have it both ways for at least two reasons.
First, the shift in public opinion is likely permanent. Since the Court struck down DOMA, a number of state same-sex marriage bans have fallen. As a result, more than 70 percent of Americans now live in states where same-sex marriage is legal. Many have probably witnessed their friends, neighbors, co-workers, and relatives rejoice in finally being able to legally marry. They’ve noticed that somehow the world still turns, the sun still rises in the East, and their own marriages are as intact as they ever were.
Second, while nothing is certain until the Court renders its decision, all signs suggest the Court will finally legalize marriage equality for the whole country sometime this summer. Justice Anthony Kennedy, considered the Court’s swing vote on the issue, has been moving in that direction for several years. Since the DOMA decision, the Court has let federal court rulings striking down state same-sex marriage bands stand, by rejected appeals by marriage equality opponents. Just last week, the court rejected the National Organization for Marriage’s last attempt to keep Oregon’s ban in place. Meanwhile the Court has opted to hear appeals where federal court rulings have upheld state bans.
Since the DOMA ruling, it’s only been a question of when — not if — marriage equality would be the law of the land. Even if the Court rules for marriage equality, the debate won’t end entirely. Opponents will turned to broadening the scope of religious exemptions from anti-discrimination laws, but they will ultimately have to focus their anger and energies on more limited questions. Meanwhile, the majority of Americans who support marriage equality will continue to grow, as more Americans see for themselves that it’s not the end of the world.
The time is fast approaching when conservatives won’t be able to have it both ways on marriage equality. They will have a bitter problem. They will have to defend or explain their decision to stand on the wrong side of history.