Wouldn’t it be nice if we could wake up, and find our debate about same-sex marriage was over? That it had been settled by the Supreme Court?
It sure would be nice if someone like myself, who is an opponent of same-sex marriage, could say, “Well, my fellow citizens, friends, and family members who support same-sex marriage, particularly those of you who are gay, we will no longer have to be in difficult dispute on this issue. Now that the amendment has passed, same-sex marriage is a part of the Constitution, and barring massive shifts of opinion, I concede that my side has lost that public opinion debate for good.”
Oh, that’s right, no amendment was passed . . .
But still, I suppose it would be nice enough if I could say, “Well, this should have been done by law, by amendment, and by democracy, but . . . okay, it’s best to move on and take this Supreme Court decision as the inevitable consolidation of a trend that was already going your way. Congratulations on your victory long-sought for, especially to those of you who wanted to marry and now can. Later on, we’ll talk about how handle the religious liberty issues this raises, and I feel confident that despite the fact that the logic of the decisions in Lawrence, Windsor, and now Obergefell, should require the Supreme Court to eventually force states to allow polygamy/polyamory, that the liberal jurists will never let that slippery-slope argument be vindicated. Not for half-century, at least.”
It would be nice also if I could say to my fellow social conservatives, “Look, we lost, and in an unfair and anti-democratic way, but for strategic reasons we should be glad that the Court has settled this. So long as the SSM issue remains a live one, younger voters are harder for the GOP to attract, and even in scenarios of GOP victory, it could be used as a way to justify a disastrous-for-us “liberal-tarian” power-play within, or break-away from, the GOP. The fears some have on religious liberty are over-wrought ones, and look, the abortion issue is simply much more important to us. Besides, it may well be that for all practical purposes, the right-to-privacy, full-understanding-of-liberty, and marriage-equality movement that has unfolded in the Court from Griswold to the present is now pretty much done, with only a few tinker-ings here and there on the edges remaining. Our Scalia-like complaints about how this was done remain valid, but as the Oklahoma! song put it, it really might be that they’ve gone about as fer as they can go, at least in this particular area of living-constitution evolution.”
Well, I obviously don’t know whether my hunches above will be proven correct. But I am sincere in saying those are my hunches, and that it’s not unreasonable for social conservatives to hold them. I could sincerely say all of the above if we could assume that Obergefell will be the end of the story, at least for a long while.
But we can’t assume that. Consider the following:
1) Roberts sided with the originalists on this.
2) It was a 5–4 decision. Last time I checked, 5 minus 1 = 4, and 4 plus 1 = 5.
3) Ruth Bader Ginsburg has resisted suggestions that she retire from strategy-minded liberals, and even if she did now, I suspect the possibility of a new appointee being approved by the GOP Senate is pretty low.
4) So if the Republicans win the presidency in 2016, which at present appears as possible as the opposite, the liberal side cannot afford a single retirement, at least not until late in 2020, when there might be time to block a new GOP appointment until (presumptive) Democratic retaking of the White House.
5) Ruth Bader Ginsburg will be 87 in 2020. Breyer, 81. Kennedy, 83. The likelihood of at least one retirement of a justice from the Obergefell majority during 2017–20 and their replacement by an originalist, if the GOP wins the presidency in 2016, would be quite high.
6) If it looks like a 5–4 anti-SSM majority has been seated, all it would take for Obergefell to be revisited is for a single state to pass a new law or amendment forbidding SSM.
7) For originalists, either the right to SSM is in the Constitution, or it isn’t. Yes, Justice Roberts might not have the adequate courage to reverse Obergefell given the chance, and yes, plenty of “sage Republicans” would be saying “Don’t revisit this, don’t reverse this, it’s the last thing we need, etc., etc. . . . ” but at the end of the day, as I said in my “Marginal Republican Dominance” piece, “any coherent version of conservatism has to put originalists on the bench, and any coherent version of originalism is going to have to say that the right to same-sex marriage isn’t in the Constitution.”
So whatever the strategic grounds that conservatives have for wanting the issue to be over, it isn’t.
In the coming days you’re going to read more than a few wise-sounding pieces from moderates so-called and big-name conservatives saying it’s time to move on. Well, I’d sure like to, but we have to face the fact that we’re stuck. We’re bound by our convictions. For an American conservative, once you abandon a firm commitment to originalism, there’s no telling what else you’ll give up.
And mushy rhetoric on this could have have severe strategic consequences also. There really is a dicey (yet most welcome!) possibility in which the GOP might provide the nation with first more-or-less originalist SCOTUS majority ever, and the first since Roe, sometime in 2017–2020. That situation would be dicey because such a majority would feel obliged to trim or reverse Roe/Casey, and the GOP has done next to nothing to prepare public opinion for such. Add a reversal of Obergefell to that, after years and years of Republican politicians staying pretty mum on such issues, and everyone from Google to ESPN assuming their finality, and with dim memory of all the “sage Republican” talk back in 2015 about accepting and working with the new reality, and you’ve got a recipe for electoral backlash. I sure wouldn’t want that possible originalist majority to be the republic’s last one! That’s the strategic reason we are obliged to firmly oppose any mushy-nice ”let’s all move-on” talk that might imply resignation to this decision. That and the fact that we need to encourage Roberts to see that deference to bad judicial precedent would be a further move away from real constitutionalism than his preference for “non-activist” deference to the broad intentions of the legislative branch already is.
Conservatives, be what you have promised to be. It would be nice if we hadn’t been pushed into the corner we have been, of either running with the trend of opinion, or keeping our promises to defend the Constitution. If strategically, this puts us in a tough place, so be it. This cannot be the typical debate about degrees of compromise regarding laws, budgets, legislative tactics, etc. Either you stand for reasonable interpretation of the Constitution, or you don’t. Conservative politicians, it is your obligation to be loud and unambiguous about this, and especially now.
Update: For a specimen of the kind of “strategic talk” that makes zero room in its calculations for the real possibilities I outline above, and which is bereft of the principled talk that will really stand up for originalism, see “The Supreme Court Just Did the Repubicans a Huge Favor on Gay Marriage,” by the WaPo’s Chris Cizzilla:
The truth of the matter is this: Given where public opinion is heading (and has already headed) on gay marriage, the less said about it, the better when it comes to Republicans’ chances of winning back the White House in 2016 and beyond. It had become abundantly clear over the last decade that the GOP’s position in opposition to gay marriage was increasingly a minority view. And the worst thing in politics is to stay on a boat that is sinking — faster and faster.
The unwillingness to distinguish between the anti-Obergefell boat of supporting gay marriage as a matter of legislative (usually state) politics, and the anti-Obergefell boat of defending originalism is very telling. If the GOP loses in 2016, and its candidates talk more than zero about the disgrace that is Obergefell, Cizzilla will blame social conservatives for the loss. If the GOP wins in 2016 by means of staying fairly mum on Obergefell, Cizzilla will advise that president either to a) not appoint originalist justices to SCOTUS, since they will inevitably return us to loser’s talk about Obergefell, or b) to somehow manage the surprise of the moderate and liberal side of America, when suddenly, the Court he or she has appointed looks at reversing Obergefell. Logically, Cizzilla’s position amounts to one against appointing real originalists to the court, or against any education of the public about originalism by the GOP. With strategists like this, who needs enemies?