In a ruling that had been widely anticipated, Judge Vaughn Walker of the Federal District Court in San Francisco today decided that California’s Proposition 8 — which was narrowly approved by the state’s voters in 2008 and amended the state’s constitution to define marriage as between a man and a woman — violated the U.S. Constitution on both due process and equal protection grounds, thereby striking it. The decision is eventually expected to be appealed up to the U.S. Supreme Court, where its fate will probably be in the hands of Justice Anthony Kennedy.
One of the distinct features of the 2010 campaign to date has been a relative lack of discussion around gay marriage. There are a variety of reasons for this — there are no marriage ballot initiatives before the voters this year, for instance, and the country has a whole host of other, more tangible problems to deal with. But can we expect this to change with Judge Walker’s ruling today?
The issue is certainly unlikely to be pushed into the spotlight by Democrats. Most polls still show at least a plurality of Americans opposed to gay marriage, although the margin is narrowing. More important, perhaps, is that the fact that President Obama is at least nominally opposed to gay marriage, as were the other two leading Democratic candidates for the Presidency in 2008, Hillary Clinton and John Edwards. As I wrote on Twitter, this is a fact that may come to seem remarkable with the passage of time, as most Democrats support same-sex marriage. Nevertheless, given the White House’s sluggish pace in working to overturn Don’t Ask Don’t Tell, a doctrine which is overwhelmingly unpopular, we are exceptionally unlikely to see a change of attitude on a related issue where the polling still cuts against them.
So it will come down, therefore, to what conservatives want to do with the issue: particularly two groups of conservatives, which we might loosely think of as the Tea Party and the Republican Establishment.
Although polling has shown that large majorities of Tea Party identifiers, like most Republicans and conservatives, are opposed to gay marriage, it has largely avoided discussion of the issue. The extent to which this has been a deliberate strategic choice is unclear, as the Tea Party is unusually decentralized. Nevertheless, it is arguably quite smart. The Tea Party has been successful, in part, because it feels fresh and new to many voters, distinguishing itself from Bush-era establishment conservatism and sometimes taking on the auspices of libertarianism. Were the Tea Party to come out strongly against gay marriage, or take explicit positions on other social issues like abortion and marijuana legalization, it would become indistinguishable from movement conservativism circa 2004, and would risk undermining the differentiation in its brand.
For the Republican Establishment, the calculus is somewhat different. They make no bones about being emphatically opposed to gay marriage. But a focus on the issue might look petty in comparison to weightier ones like unemployment, the deficit and health care, all of which are providing them with considerable momentum on their own.
However, the ruling today is potentially a game-changer in that it will allow both groups to frame the issue as one of judicial activism, rather than “family values”. This line of attack makes for cogent soundbytes, and it will arguably be quite salient to voters, as Walker overturned a referendum passed by the majority of California’s voters a mere 21 months ago. The less equivocal among the Republican Establishment may try to bolster their case by pointing to the fact that Walker himself is gay.
The fact that the issue is now almost certain to come before the Supreme Court also renders it less abstract than usual. Were Barack Obama to have the opportunity to replace a conservative Justice with a liberal one, or an incoming Republican President in 2013 the reverse, that would probably be decisive for the issue, perhaps for many decades.
My best guess is that the Tea Party will largely continue to shirk the issue, but that the Republican Establishment will be fairly happy to engage it. The real battle, however, may come in 2012, when the Supreme Court could be about ready to take up the case. The leading indicator may be the reactions of the major Presidential hopefuls. For instance, will Sarah Palin produce a tweet or Facebook post containing the the phrases “activist judge” or “judicial activism” within the next 24 hours? It may depend on which type of conservatives — the tea-partiers, or the movement conservatives of the Republican Establishment — that she ultimately wants to affiliate herself with.