If the Supreme Court rules state gay-marriage bans are unconstitutional, the issue could go a couple of ways. Just as with Roe v. Wade and abortion, gay marriage could remain a fixture in the public discourse long after a justice pens a majority opinion. Or it could move the debate onto the political back burner—and that would be a good thing for the GOP.
The high court will hear oral arguments on gay marriage this week, including whether California’s Proposition 8 ban holds constitutional muster. A ruling that overturns the law could very well just apply to California and similarly situated states, or—although it's unlikely in the extreme—the Court could rule any ban is unconstitutional, closing the door on state laws outlawing gay marriage.
However the Court rules, polling clearly shows which direction the country is moving. Public opinion on gay marriage has pretty much reversed over the past decade, with 58 percent of Americans now favoring it, while 36 percent say it should be illegal, according to a recent NBC News/Washington Post poll.
Meanwhile, an internal debate rages on within the GOP. The more socially conservative faction of the party that opposes gay marriage represents some of the most committed and enthusiastic voters, volunteers, and workers. The libertarian segment is increasingly in favor of gay marriage. And then there’s a significant generational divide: The NBC News/Washington Post poll shows most Republicans and right-leaning independents under 50 favor gay marriage.
The Republican Party has to figure out a way to balance all those elements while also looking to attract new voters. A gay-marriage fight remaining front-and-center doesn’t benefit the GOP; 80 percent of 18-to-29-year-olds favor same-sex marriage.
“Republicans view the economic cluster right now, and the broad fickle government versus the individual, as a much more secure argument than diving back into the cultural war 3.0,” says GOP strategist Rick Wilson.
There are political consequences to how a candidate is positioned on gay marriage. Republican pollster Alex Lundry—working on behalf of conservative, pro-gay-rights group Project Right Side—found that about half of President Obama’s winning margin in battleground states is attributable to the issue. He focused on independents and Republicans who voted for Obama and said gay marriage was a “very high” priority for them and that Obama’s stance made them “much more” likely to support him.
And while Roe v. Wade clearly hasn’t taken abortion out of the political arena, unlike abortion, national sentiment around gay marriage has changed dramatically over the past decade. “Public opinion is very static on abortion. We are in the midst of a sea change on same-sex marriage,” Lundry says.
A high-court ruling could also allow Republicans to move the argument from a moral or religious one to one focused on states’ rights—will states be federally mandated to recognize same-sex marriages, no matter how voters feel? Even Sen. Marco Rubio, R-Fla., who believes marriage should between a man and woman, has been framing it that way lately. “Just because I believe states should have the right to define marriage in the traditional way does not make me a bigot,” he said at CPAC.
“If the conversation moves into a states’ rights issue, rather than debating 'how should we define marriage,' then Republicans could position this as 'who should be deciding,' ” says Republican pollster Kristen Soltis Anderson. “That change in the equation gives Republicans a slightly better position in terms of a general election electorate.”
A recent Fox News poll showed that while 53 percent of voters think gay marriage is protected under the Constitution, 53 percent also think legalizing it should be left up to the states.
But some Republicans say that the political discourse on gay marriage will continue, no matter how the Court rules.
“The conversation is happening, and it’ll just keep going and the volume will go up either way this thing gets ruled; and when the volume goes up, people will reconsider where they stand on this,” Lundry says. “There is a small, very important, consequential group of the Republican electorate that disagrees with [gay marriage]. We need to have this debate."
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