Monday, April 1, 2013

No Bad Ruling

Now that the Supreme Court has listened to the arguments over not one but two same-sex-marriage cases it'll be a few weeks before it delivers a ruling. When the Court does so it can essentially deliver one of three verdicts and while a lot of folks are going to be in pins and needles until the Court makes its decision, there is really no decision this Court can make which will mean anything bad for either marriage proponents or the left writ-large.  In broad strokes, the Court can do one of three things.

The Court can overturn Proposition 8 and the Defense of Marriage Act (DOMA).  Given the rather lackluster defences of DOMA during oral arguments, it seems rather likely that DOMA will face an uphill fight though Proposition 8 -- California's ban on gay marriage -- may fair somewhat better.  Obviously a decision from the Court either verbosely establishing a right for homosexuals to marry or at least striking language from federal statues preventing the same would be a major victory for the gay rights movement.

From a more political standpoint, such a decision would, depending on the size of the majority involved, either prod the conservative movement into more outspoken opposition to gay marriage -- casting it as a kind of 21st Century Roe v. Wade -- or drive a wedge between evangelical conservatives, who will likely continue to oppose gay marriage, and the larger Republican Party, which will seek to put the issue to rest as rapidly as possible.


The Court can avoid ruling on the issue.  The Supreme Court has a long institutional fondness for dodging particularly thorny issues on procedural grounds.  Perhaps someone lacks standing to sue or one of an almost infinite number of other hurdles wasn't cleared to the Justices' satisfaction.  While the Court is not capricious in its rulings it is often unwilling to risk setting precedent on anything less than an iron-clad case and the Court is constantly aware of its role in the broader political and social picture.  If gay marriage seems likely to resolve itself to the Court's satisfaction as a national issue without a ruling, it is entirely possible that the Court may demure on these cases and find some way to avoid artificially concluding debate.  Justice Ginsburg herself has noted that the Courts' decision in Roe v Wade may actually have prolonged the abortion debate which, without a ruling, could well have resolved itself into a position further to the left of where the country now finds itself.

Should the Court dodge the gay rights issue the political tide will almost certainly continue unabated and the right will be forced to grapple with the issue again in 2014 and 2016, both likely to the movement's detriment.  Polling on gay marriage shows a significant age divide with a graying opposition and the coming decades will continue to deepen the left's advantage as younger voters replace older ones at the polls.

More drastically...

The Court can uphold existing laws.  Regardless of the Courts' decision the demographics and political winds are aligned against the American Right.  Should the Court do nothing gay marriage will continue as a major thorn in the Republican Party's side until the issue is resolved, but if the Court upholds the existing laws the fallout will be dramatic and significant.  The decision will almost certainly be a close one and with President Obama in office support of gay marriage as an issue will translate directly into anger with the Republican Party.

It is rather likely that President Obama will have the opportunity to appoint another Supreme Court Justice in his second term and the gay rights movement will move mountains to ensure that Obama faces no meaningful resistance in the Senate when he does so.  Such an impetus could very well be enough to nationalize the 2014 elections -- making the 466 or so local House and Senate races into one big national campaign.  With a little luck Democrats could turn a ruling against gay marriage into a sweep of the 2014 elections, putting both the House and Senate firmly under Democratic control for the better part of a decade.

It's sure to be an interesting summer.

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