Marriage Politics

“[S]everal forces, political as well as demographic, may converge to render a presidential candidacy by [Rob] Portman, the Ohio Republican U.S. senator, as at least nominally viable,” writes Stephen Koff, Washington bureau chief for Cleveland’s Plain Dealer. About a potential run by Portman, one of a handful of GOP congressmembers who support marriage equality, Koff observes:

Key to this is the fact that a Portman candidacy could align with a U.S. Supreme Court decision that would end the legal and constitutional fight over same-sex marriage. Such a ruling could come by next summer, well before the Republican voters go to the first 2016 caucuses and primaries. …

Patrick Egan, a New York University political scientist who has studied public opinion and gay and lesbian issues in politics, said, “My sense is that in their heart of hearts, Republican Party leaders would very much like to see the issue of gay marriage taken off the political agenda for 2016 and beyond.”

A credible run by Portman would signal a profound shift in the GOP. However, as Koff noted, that would be predicated on a Supreme Court ruling that takes marriage off the political table. But last week, liberal Supreme Court Justice Ruth Bader Ginsburg said that if the appellate circuits keep finding a constitutional right to same-sex marriage (albeit in decisions that are invariably stayed), then there is “no need for us to rush.”

That could mean several years delay as each of the circuits address the issue. So, ironically, supporters of marriage equality (as opposed to those who would like to keep the issue brewing as a culture war hot point, for political mobilization purposes), should be hoping that the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) breaks ranks and upholds state bans on same-sex marriage, as law professor and IGF contributing author Dale Carpenter writes it seems poised to do. That would create a split among the circuits that would dramatically hasten the Supreme Court’s ruling on the matter.

14 Comments for “Marriage Politics”

  1. posted by Tom Scharbach on

    I have yet to hear any proponent of marriage equality “hoping that the Sixth Circuit … breaks ranks and upholds state bans on same-sex marriage” for any reason, political or not. I think that almost all proponents of marriage equality want as quick a resolution of this issue as possible.

    Stephen and the other hyper-political game players forget a simple fact: Real couples, and in many cases their children, are directly and negatively affected by marriage inequality, and the negative effects of marriage inequality for us will continue until a resolution is reached. Stephen and the others who are playing politics with this issue may not care about the real-world effects of marriage inequality on gay and lesbian couples like my Michael and me, or Don and his intended Jorge, but a lot of gays and lesbians do care, and don’t give a fork about the political fallout, one way or the other.

    The question — and the only question under any realisitic scenario — is whether a decision will come this term (June 2015) or next term (June 2016).

    The Supreme Court is presented with about 10,000 petitions for cert every year, and grants cert in about 100 of those cases. The Court takes cases under three circumstances — cases in which appeal is mandatory (e.g. an appeal of a federal question from a state Supreme Court, ala Baker v. Nelson, cases which present constitutional questions of “national importance” (e.g. Brown v. Board) and cases which present constitutional questions over which the appellate circuits are split.

    None of the cases before the Court are “mandatory”. The Court can choose whether or not to hear the cases. So far, there is no split in the circuits.

    In order for the Court to take the cases without a split, four justices would have to deem the constitutional questions over marriage equality of sufficient “national importance” to take up the cases. It is not inevitable that the Court will do so. Instead of taking up the cases, the Court could wait until the end of the term (it is rare, although no unheard of, for the Court to take no action on cert petitions beyond a term), deny cert, and marriage equality would become a fact in many states without a Court decision.

    With a split (say from the 5th or 6th Circuits) review would be almost certain, because the Court could not deny cert in the marriage equality cases without creating a situation in which the constitution applied differently across the states in the different Circuits.

    Nobody knows how this is going to shake out, although I think that it is extremely unlikely that the Court will deny cert in all the cases now (and soon to be, split or no split) presented for review.

    The fact that the current cases are already on the conference schedule suggests strongly that some Justices are pushing for review. I cannot imagine that Justices Alito, Scalia and Thomas would allow marriage equality to become a fact-on-the-ground in a large number of states (which is what would happen if cert were denied in the current cases) without a chance to weigh in, and it is hard to imagine that at least one other Justice (and that is all that it takes to get to the four needed to grant cert) would see much advantage to setting up a circuit split in the next term if the 5th Circuit, as expected, rules unfavorably if and when it gets around to it.

    So I believe that the cases will be heard this term, split or no split, regardless of Justice Ginsburg’s comments. She’s right as a technical matter — there is no urgency to hearing the marriage issue absent a split in the circuits — but her comments do not reflect the practical realities of allowing marriage equality to become a fact-on-the-ground without the Court weighing in on the issues.

    • posted by Tom Jefferson 3rd on

      Technically, their are a few type of cases that the high court has to take, but for the most part they have absolute and secret discretion on what cases to take and what to avoid.

      Many issues – even potentially hot button ones – do not always get an immediate day in court.

      Sometimes – like with ballot access jurisprudence – the court prefers to say little, even if it creates some legal confusion and silliness.

      Well, even if gay marriage was no longer front and center – via a court ruling – it is not entirely clear how that would shape gay voters or what gay rights issued get tossed around the campaign trail.

  2. posted by Jorge on

    But last week, liberal Supreme Court Justice Ruth Bader Ginsburg said that if the appellate circuits keep finding a constitutional right to same-sex marriage (albeit in decisions that are invariably stayed), then there is “no need for us to rush.”

    True enough. But as Tom points out quite credibly, reasonable people can disagree.

    A credible run by Portman would signal a profound shift in the GOP.

    (Thinks back to Ron Paul’s last run for president.)

    Yeeeeech! Those “profound shifts” have a habit of taking the party backwards.

    Then they select average happy-happy-all candidates who get lost in Mexico and conception.

    I think that almost all proponents of marriage equality want as quick a resolution of this issue as possible.

    Hmmmph. I think you’re mainly saying that because you’re certain it’s a low-risk battle. Well, that’s a good thing.

  3. posted by Doug on

    A positive decision by the Supreme Court finding a right for marriage equality will no more take the issue off the table for the GOP than the Supreme Court finding in Roe v Wade too that issue off the table.

    • posted by Tom Scharbach on

      A positive decision by the Supreme Court finding a right for marriage equality will no more take the issue off the table for the GOP than the Supreme Court finding in Roe v Wade too that issue off the table.

      I agree, and note that it won’t make much difference whether the ruling comes during this term (2015) or next term (2016).

      In either case, Republican candidates, and in particular the Republican presidential nominees, are going to have to respond to the ruling.

      The range of responses runs from acceptance (e.g. “The Court has spoken, the matter is closed …”) to resistance (e.g. calls for “religious freedom” exemptions similar to the “seg school” strategy of the Dixiecrats-turned-Republican during the Nixon-Ford-Carter-Reagan era) to frontal attack (e.g. renewed calls for a federal constitutional amendment) to outright defiance (nullification).

      I’ll grant you that the political situation will be more problematic for Republicans if the decision comes down in 2016, right smack in the middle of the Republican presidential nomination battle, than if it comes down in 2015, but I don’t think that the timing will change the essential issue — shaping and selling a Republican response that will satisfy the Republican “base” without alienating the broad American middle, which now accepts marriage equality.

  4. posted by Tom Scharbach on

    A credible run by Portman would signal a profound shift in the GOP. However, as Koff noted, that would be predicated on a Supreme Court ruling that takes marriage off the political table.

    This statement reminds me of a statement I heard in the DPW 2nd Congressional District convention in the spring of 2007.

    State Senator Fred Risser was reflecting on the 2006 elections, in which Wisconsin’s 2006 anti-marriage amendment was a major issue (Republicans strongly supporting the amendment, Democrats not), said something to the effect of “Thank God that’s over. We won’t have to deal with “God, Guns and Gays” now that the amendment has taken the gay issue off the table.”

    Boy, Howdy, was he wrong. The amendment — and his reaction to it — led to formation of the DPW LGBT Caucus, which spent the next six years turning the party into the “We Support Marriage Equality” party in Wisconsin.

    And Boy, Howdy, is Stephen wrong if he thinks that a SCOTUS decision is going to take gay issues off the table.

    We’ll be fighting a whole host of battles about schoolbooks, “Don’t Say Gay” laws, so-called “religious freedom” exemptions and all the rest for years and years to come.

  5. posted by Houndentenor on

    I hope Portman runs. Or if not him at least one other primary candidate who isn’t an unrepentant anti-gay bigot. I don’t think he’ll do that well in the primaries (feel free to prove me wrong) but it would be nice to have someone in the primary debates arguing in favor of gay rights. And to force Santorum and his ilk to say the crap they say about gay people to the face of a man with a gay son. I would welcome that. Perhaps you would do well to organize some support for a pro-gay GOP primary candidate now since the debates will be starting in less than a year. (At least that’s how early they seemed to start in 2011.)

  6. posted by Tom Jefferson 3rd on

    Yes, it would be nice if the GOP presidential primary didn’t look like a room full of people seeking to take America back – to before indoor plumbing.

    One challenge is that primary voters tend to be more idealistic or ideological – depending on your own beliefs.

    The polarizing of the two parties – which plays out in the primary -has gotten steadily worse and it’s not good for the nation.

    Bernie Sanders or Paul Ryan or Ralph Nader may appeal to an idealistic or an ideological base – but their appeal with ‘swing voters” is pretty limited.

    • posted by Houndentenor on

      I find it interesting that the most optimistic on this front are the gay Republicans who live in liberal enclaves. The least optimistic are the liberal gays living in deep red areas. Reality lies somewhere in between. Gay Republicans have a tough road ahead of them to wrest the GOP agenda on social issues away from the religious right. I wish them well and hope I am wrong about the futile nature of such an endeavor. The Texas gubernatorial primaries earlier this year put the worst elements of the party on display. The national party has more variety among its membership. The real question is whether our moderate “friends” will stand up for us or continue to shame gays who dare criticize them for selling us out in exchange for tax cuts.

  7. posted by Tom Scharbach on

    Young Conservatives for Freedom to Marry is undertaking a national effort to flip the 2016 Republican platform to read: “We encourage and welcome a thoughtful conversation among Republicans about the meaning and importance of marriage, and commit our Party to respect for all families and fairness and freedom for all Americans.” That would be a start, anyway, laying the groundwork for a 2020 candidate like Portman.

  8. posted by Tom Jefferson III on

    I suspect that both major parties will (as they have always done so) change and remold again and again to fit the changing demographics and the like.

    If you happen to reside in a State or district that is pretty (cough, cough) ‘red’ on social issues or even just gay rights issues, it may be difficult to be too optimistic about what might change on the ground, much less in terms of party politics.

    On the flip side, if you live in a pretty liberal state or district, I can also see how you might be a tad bit too quick to believe that things are going to magically get better on the ground and within party politics overnight….

  9. posted by Tom Jefferson III on

    The advantage of the recent decisions was that it allowed everyone to save a bit of face. Which shouldn’t necessary matter in terms of Constitutional rights, but the high court cannot pretend to exist in some sort of twilight zone.

    Gay couples would have the ‘Federal’ freedom to marry, if their State recognized their freedom to marry. But states that did not recognize the freedom to marry could still save a bit of face, in the short term.

    On some level, the high court might not want to strike down the State bans on same-sex marriage…even if enough of the justices appreciate the fact that such a ban is a clear equal protection violation.

    They may not want to deal with enough polarizing controversial, such as Roe v. Wade and they may feel that if they take gradual steps, the public will be more likely to accept it, even if they are not happy with it.

    am I the only one thinking about this, as cynical as it may be?

    • posted by Houndentenor on

      The real issue with that is that it creates problems if you are married for federal purposes but not state purposes. For one thing, many state income taxes use the federal numbers as a base. Secondly this is a huge headache for corporations many of whom are already prepared to file amicus briefs in favor of gay marriage for this reason. It’s just not a workable solution and I don’t think we do it for anything else. (Do we?)

      • posted by Mike in Houston on

        Or hassles like the poor woman who can’t get a drivers license here in Texas because her last name is the same as her wife’s — as shown on her SS card, federal tax returns and passport.

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