Marriage Politics After U.S. v. Windsor
5:20 PM, Jun 26, 2013 • By JEFFREY BELL
The Supreme Court’s rulings on gay marriage effectively leave the issue very much alive in state and national politics. The four justices appointed by Presidents Clinton and Obama clearly would declare a constitutional right to same-sex marriage in a heartbeat, if they were to get a fifth vote. Reagan appointee Anthony Kennedy was evidently about a millimeter away from providing that vote—in his opinion overturning Section 3 of the Defense of Marriage Act, he ascribed to the legislators who enacted DOMA “a bare congressional desire to harm a politically unpopular group”—but seems to have been pulled back by the decision of Justices Roberts and Scalia to side with him on California’s Proposition 8 on technical rather than substantive grounds. As a result, supporters of traditional marriage narrowly dodged the Roe v. Wade bullet of Supreme Court imposition of mandatory gay marriage in every state.
As one result, the battle to define marriage will continue in state politics, in part in the form of new referenda. With the exception of Illinois, the left for the moment has run out of states where they have a shot at prevailing by means of state legislation signed by a pro-gay-marriage governor.
But looming over all these battles is a stark reality. The next vacancy involving one of the five justices appointed by past Republican presidents will give Barack Obama—or his successor—a chance to assemble a Roe-style majority for judicial tyranny, on marriage and whatever else is on the social-liberal checklist. It would be very surprising if this is not a key issue in the 2016 Republican presidential primaries and beyond.
Jeffrey Bell is policy director of the American Principles Project and author of The Case for Polarized Politics: Why America Needs Social Conservatism (Encounter Books, 2012).
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