Barro claims a SCOTUS ruling establishing a federal right to marriage in all 50 states would be best for the GOP:
A Supreme Court decision imposing gay marriage nationwide will not only make this problem go away, but it will also give Republican politicians a useful scapegoat to impotently shake their fists at. They can say they wish they could continue the fight against gay marriage, but alas, those judicial activists at the Supreme Court have made it impossible. And then, gradually, everyone who cares about stopping gay marriage will grow old and die, and we can stop talking about the issue.
When Republicans argue that a sweeping decision for gay marriage would sow longstanding division, they are comparing it to Roe v. Wade. But this analysis is wrong. Abortion remains a divisive political issue 40 years after Roe, but not because it was decided judicially. Abortion is a different kind of moral question than same-sex marriage, about what a life is, not what kinds of sexual morality the government ought to encourage; abortion supporters and opponents would not have reached consensus absent the Roe decision.
They may not have reached consensus but they might have had a chance at reaching compromise, as in most other Western democracies.
But Barro is onto something: for the purely cynical GOP elites, SCOTUS could indeed save them from an increasingly unpopular political position they cannot change – because it is God’s law and their base sees no distinction between politics and religion. But the evangelical faction? If there’s one thing that could resurrect their anti-gay passion and deepen their sense of victimhood would be SCOTUS over-reach. That’s why I still favor the federalist, slower path to equality – by changing consciousness, consciences and thereby votes in the states, which are, in the end, the core political unit for legal marriage in the US.
The one reservation that has struck me recently is whether I have become too attached to my own experience in this struggle over a quarter of a century and am under-estimating the current scale of the public shift – a shift that would make a clear SCOTUS position far less likely to provoke meaningful backlash. One surprise for me in the recent ABC/WaPo poll was that a clear majority of both pro-marriage equality and anti-marriage equality forces wanted to the Supreme Court to have the final say nationally:
Americans by nearly 2-1, 64-33 percent, say the legality of gay marriage “should be decided for all states on the basis of the U.S. Constitution” rather than by each state making its own law on the issue. That view, interestingly, is not much impacted by attitudes on the issue itself: Among supporters of gay marriage, 68 percent say the Constitution should rule; among opponents of gay marriage, 62 percent say the same.
Preference for a Constitution-based determination encompasses two-thirds or more of Democrats and independents, liberals and moderates alike; it’s lower, but still a majority, among conservatives (56 percent) and Republicans (54 percent).
This may mean that both sides simply want a swift and total victory. But that will mean swift and total defeat for one side, with no democratic recourse. So it doesn’t rule out backlash. But the sudden shift in support for equality and the staggering 81 percent of the under-30s supporting it, along with nearly 60 percent of all Americans, may be changing this issue faster than even I can quite absorb – and give the court considerably more lee-way in going big.
Of course, one could argue that one reason for limiting the reach of the court ruling is to make the GOP increasingly isolated, giving yet another tolerant generation a permanent attachment to the Democrats, as anti-gay forces fight furiously in state after state, branding the GOP indelibly as intolerant and anti-modern. Since they lived by the wedge issue for so long, why not make them slowly die on it for a few more election cycles? But this is a step too cynical for my taste. It is to out-Rove Rove – a sure sign that one has lost one’s moral bearings.
But still, if the argument against too sweeping a ruling is a conservative one, fearful of the court getting too far out in front of the popular will … then dramatically rising public support for equality weakens the case. I still hold the federalist position – but have to concede that I may be fighting an old battle rather than the new one. Perhaps it’s hard for an old warrior not to misread the new battlefield. But I’d rather do it the old-fashioned way. Because we’re winning in the best way possible: by actually changing minds and hearts of the people, not of one Justice.