With the California Supreme Court set to issue its ruling on Tuesday on the validity of Proposition 8, a voter-approved initiative to define marriage in the Golden State as the union of one man and one woman, gay marriage will once again dominate the headlines.
This issue has proven nettlesome for both parties. President Obama has tried to soft-pedal his opposition to same-sex marriage by professing his support for “equivalent rights” (whatever that means) for gay people. Meanwhile, Scott Schmidt, a former senior strategist to the McCain campaign has urged Republican candidates to “steer clear of divisive social issues” like gay marriage and abortion in order to become more electorally “viable.”
At the same time as Schmidt advises the GOP to avoid gay marriage, citizens across the country continue to vote in favor of initiatives like Prop 8 which block states from recognizing same-sex unions as marriages. Despite such popular opposition, courts in four states (Massachusetts, California, Connecticut, and Iowa) have ruled that their jurisdictions must recognize same-sex marriages (with Prop 8 invalidating the California ruling). State legislatures in three states (Vermont, New Hampshire, and Maine) have passed legislation recognizing same-sex marriages (with New Hampshire’s Democratic Governor John Lynch vetoing the bill, “asking the legislature to include language that would protect churches and other religious institutions from prosecution if, for example, they refuse to perform same-sex marriages.“)
With gay marriage remaining at the forefront of our national consciousness, the Republican Party, seeking to rebuild after losses in two successive national elections, struggles to address the issue without alienating young voters and socially liberal suburbanites who share the GOP’s fiscal and national security principles but are wary of backing socially conservative candidates.
Michael S. Steele, chairman of the Republican National Committee, believes in “recasting gay marriage as an issue that could dent pocketbooks as small businesses spend more on health care and other benefits.” This “recasting” could allow the party to bring together social conservatives (who oppose gay marriage on moral grounds) and small businessmen and libertarians (who opposed additional federal and state mandates on private enterprise). But if state recognition of same-sex marriage imposes burdens (by requiring businesses to provide benefits to same-sex spouses), wouldn’t state recognition of traditional marriage be an even greater burden? There are far more different-sex couples than same-sex couples — even in states which have recognized same-sex marriages.
By that logic, then, to help small businesses, it would behoove states not to recognize marriage at all. And social conservatives would surely not welcome such non-recognition.
Steele’s suggested reframing of the issue would thus do little to help the GOP.
In preparing for President Obama’s announcement of his nominee to the U.S. Supreme Court, Republicans on the Senate Judiciary Committee may have come up with an approach which could resonate with voters, even in such “blue” states as California. According to the Washington Post, conservatives in our nation’s capital “are making clear that his nominee will face plenty of questions during the confirmation process on the legal underpinnings of same-sex marriage.”
Committee Republicans are sure to press the president’s nominee on how he or she would adjudicate the constitutionality of the federal Defense of Marriage Act (DOMA), a 1996 law signed by then-President Clinton allowing “states to ignore marriages performed in other states and den[ying] federal recognition of legal gay marriages.” In addressing the constitutionality of DOMA, Republicans could force the nominee to elucidate his judicial philosophy — whether, in the words of Alabama’s Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, “they think that they’re not bound by the classical meaning of the Constitution, and that they may want to let a personal agenda go beyond what the law said.”
Many conservatives believe (and judicial decisions in several states bear them out) that liberal jurists have just such a “personal agenda” that these jurists will discover a “right” to government recognition of same-sex marriage in the penumbrae of the federal constitution. By asking the president’s judicial nominees to address this supposed “right,” Judiciary Committee Republicans could reframe the issue not as one of gay marriage per se, but as one of separation of powers — whether the legislature or the judiciary should define gay marriage.
And that has proven to be a winning issue at the ballot box. Some credit the success of Proposition 8 to the “Yes on 8” ad which reminded voters that “four activist judges” (on the State Supreme Court) overturned a popular initiative, Proposition 22. Indeed, state ballot initiatives defining marriage as the union of one man and one woman do better in years when state Supreme Courts mandate state recognition of same-sex marriage. In 2004, after Massachusetts’ highest court ruled in favor of such recognition, thirteen states voted for ballot initiatives designed to thwart such judicial recognition, with 73% of North Dakota voters favoring the initiative.
Two years later, however, after the highest courts in New York and Washington ruled against such recognition, only 52% of voters in South Dakota, demographically similar to its neighbor to the north, favored the initiative.
The American people would rather courts didn’t resolve such social issues, preferring the matter be left to the elected legislature.
If Republicans wish to address the gay marriage issue while still appealing to more socially liberal voters, they should ignore RNC Chairman Steele’s recent comments. Instead, they should follow the example of Republicans on the Judiciary Committee who will press the president’s Supreme Court nominee on his judicial philosophy. Should the GOP reframe the issue (as many have tried) as one of separation of powers, with our party favoring a legislative resolution, this can turn this issue to their advantage without unnecessarily antagonizing supporters of same-sex marriage.
And this strategy would be entirely consistent both with the ideals of our party and the principles of the United States Constitution.