Courting a ‘lose-lose’ proposition for conservatives on gay marriage

I wonder how Supreme Court Justice Antonin Scalia feels to be wrong. A year ago, dissenting in U.S. v. Windsor, which overturned the Defense of Marriage Act (DOMA), Scalia criticized his brethren for “cheat[ing] both sides, robbing the winners of an honest victory and the losers the peace that comes from a fair defeat.” In Windsor, you may recall, the U.S. Supreme Court declared DOMA unconstitutional but refused to legalize gay marriage across the board. Scalia forecast that the court had set up a piecemeal process in which prohibitions on gay marriage would be litigated state-by-state as challengers filed (and likely won) suits in the lower courts rather than relying on the Supreme Court to decide once and for all whether gay marriage was a constitutional right.

For a while, it looked like Scalia would be right. In the year following Windsor, challengers secured victories in multiple state and federal courts declaring that prohibitions against same-sex marriage are unconstitutional. All the while, the Supreme Court remained silent. Returning from its annual recess in October, the justices decided not to hear appeals from three same-sex marriage cases, effectively permitting gay marriage to become law in a majority of states. In a rare glimpse of the justices’ thinking, Justice Ruth Bader Ginsburg was quoted as saying there was no immediate need for the Supreme Court to take up additional gay marriage cases. So long as the lower courts continued to invalidate restrictions on same-sex marriage, a tidal wave of constitutional change could continue to sweep the country without the justices becoming involved.

That strategy worked well until the 6th Circuit Court of Appeals muddied the waters in early November with a 2-1 decision refusing to overturn restrictions on gay marriage in four states. In an argument often heard from conservative critics, the two Republican-appointed judges claimed that constitutional and social change should come from voter “initiatives and legislation,” not court decisions. You could almost hear the cheering across town from the Family Research Council and the Heritage Foundation: Voters, not unelected judges, would get a final say about marriage laws. If the good people of Ohio or Kentucky didn’t want to permit gays and lesbians to marry a decade ago when adopting legislation, the 6th Circuit wasn’t about to contradict their judgment.

{mosads}But, just as Scalia was wrong in predicting the pathway of gay marriage, conservatives would be wrong to celebrate the 6th Circuit’s decision as a lasting victory. There are only two paths forward at this point, and both spell bad news for conservatives. With the federal appellate courts now split on gay marriage, the Supreme Court may feel ready to decide the issue’s ultimate constitutionality. Should the justices do so, it is virtually impossible that they would allow the 6th Circuit’s decision to stand. They already refused to block the march of gay marriage in the 4th, 9th and 10th Circuits earlier this fall, and for a court that has previously rested constitutional decisions on “evolving standards of decency that mark the progress of a maturing society,” gay marriage would fit the model of an issue in which public opinion and then constitutional norms progressively evolve. If the court decides to review the 6th Circuit’s decision, you can start popping champagne corks at gay marriages across the country next summer.

If, however, the Supreme Court remains on the sidelines, it will have served up a wedge issue that actually works against conservatives. Imagine a situation in which gay marriage is permitted, indeed required, in the states of the 4th, 9th and 10th Circuits, but can be prohibited in those states encompassing the 6th, not to mention 5th and 11th Circuits where conservative judges may feel empowered to follow the 6th Circuit’s lead. That’s right — gay marriage in Utah and Idaho but not in Michigan, Ohio or even Florida. The cry for federal action would be immediate and strong and would land itself right in the middle of a newly Republican Congress.

Oh, the dilemma for those lawmakers. On one hand, they’ll face the demands of their conservative base to protect traditional marriage from further expansion; vote for gay marriage and risk a primary challenge. But a strong stand against same-sex marriage threatens the Republicans’ brand at a particularly inopportune time. Have you noticed that Republican leaders have become increasingly quiet about gay marriage? They’re not stupid. They’ve read the polls that show majorities of Americans support gay marriage, particularly in blue, purple and now mildly red states. They also know that the issue has become a dog whistle of sorts for younger Americans, signaling how modern and open a party is. Republicans lost younger voters going away the last two presidential elections. With their prospects now looking better for 2016, Republicans cannot risk a showdown that sends the wrong signals to an emerging group of voters, potentially losing another cohort for elections to come.

For conservatives, then, gay marriage has become a “lose-lose” proposition. Either the Supreme Court proves Justice Scalia wrong and declares gay marriage constitutionally required, or a patchwork of laws leads to demands on a Republican-led Congress to take a stand. Are conservatives done in by their supposed friends, or do they put the Republican brand at risk at the very time the party has been making electoral inroads? Scalia originally wanted an “honest victory” or a “fair defeat” on gay marriage. It looks like he is going to get it.

Gould is a professor at American University.