Why Republicans Should Embrace Past Same Sex Marriage Rulings

Last month the United States Supreme Court granted certiorari on a pair of cases concerning the latest struggle for equality: gay marriage. The first is an appeal from the Second Circuit in which a three-judge panel, led by conservative appointee Chief Judge Dennis Jacobs, struck down Section 3 of the Defense of Marriage Act, which precludes federal recognition of same-sex marriages sanctioned at the state level. The second case — shepherded by the doyens of Supreme Court advocacy, David Boies and Ted Olson — arises from a Ninth Circuit ruling invalidating California’s controversial Proposition 8, a 2008 voter initiative that confines marriage to the union of a man and a woman. 
Conventional wisdom tells us that support for and opposition against these gay marriage cases will fall sharply along party lines, with Democrats embracing the right to wed and Republicans decrying a departure from the status quo. But a closer look at presidential elections, past and future, reveals the eye-opening storyline that the GOP might actually benefit from a gay marriage victory next June. 
Perhaps the most discernible lesson from the 2012 presidential election is that Republicans face an uphill battle in reclaiming the White House without accumulating a greater share of the female and youth vote. This segment of the population overwhelmingly voted in favor of President Barack Obama — Gallup reports that the 2012 election boasted the largest gender gap in recorded history, and the disparity with respect to the youth vote was similarly stark, with approximately 60 percent of voters ages 18 to 29 siding with Obama — and is sure to play a pivotal role in future Democratic election bids.

This voting trend has in large part been attributed to a sweeping rejection of the Republican stance on significant social issues. Among the most notorious positions of American conservatism continues to be its fevered condemnation of gay marriage. Illustrating the increasing unpopularity of this posture, the most recent election saw the majority of voters in several states — including Maine, Maryland, Minnesota, and Washington — shifting to the left and casting their ballots in support of gay marriage rights in Election Day referendums. According to 2012 exit polls, women and millennials cast the decisive votes in legalizing same-sex marriage in these states.

With the female and youth voters gaining political clout and demonstrating a growing social acceptance of gay marriage, it is concededly difficult to envision a Republican victory in 2016 and beyond if the party maintains its hardline opposition to social issues like gay marriage. Recognizing these bleak prospects, political pundits have widely opined that the GOP must undergo a transition before it will appeal to the socially left-leaning voter base at the polls—a transition from a party that presently falls on the wrong side of social issues that are of paramount importance to female and youth voters, to a party that advocates for conservative economic policies but that displays greater tolerance on social issues.

The unsurprising fact of the matter, however, is that no current Republican politician exhibits the gall, willingness, or influence to usher in such a far-reaching reformation. Even if a reform-minded member of the Republican leadership emerged who was capable of engendering this ideological shift in the party’s official platform, however, such an internal transition would still be a disfavored approach because it would doubtlessly occasion a flood of withering criticism, as detractors would dismiss the shift as nothing more than a self-serving political ploy to curry favor with these key demographics.

For the GOP to undertake this necessary reform while minimizing the political backlash, it must be accomplished through an external force. Enter the Supreme Court. The gay marriage cases represent perhaps the most effective course to realign an element of the party platform that is out of sync with the evolving American electorate. A ruling that gay individuals have a constitutional right to marry would unilaterally prompt a shift in Republican social policy that would work to the advantage of the party in the long-run by eliminating a critical barrier to the woman and youth vote and doing so in a manner that would largely circumvent the stain that might otherwise attach if the party were to make this adaptation internally.

What Republicans desire in the short-term is not in harmony with the best interests of the party in the long-term. Members of the GOP should therefore bear in mind that a Supreme Court decision permitting the federal government and the states to ban gay marriage would solidify within the party’s ideology a vastly unpopular social policy that exacerbates the gender and generational splits. Republicans should instead invite a sweeping Supreme Court declaration that gay couples have a constitutional right to marry, which would serve as the catalyst for change that the ideologically-ossified party desperately needs to shed an outdated social policy that is repugnant to vital demographics and close the voting gap among women and younger Americans.




This indirect benefit to the Republican Party arising from a gay marriage victory might provide Chief Justice John Roberts with greater comfort should he ultimately decide to join his liberal colleagues in striking down the bans on gay marriage. Last term’s landmark healthcare decision imparts a critical lesson: if Chief Justice Roberts is going to vote against the conservative cause, he would prefer to do so in a manner that still confers an indirect benefit upon the conservative cause. Indeed, although the Chief Justice cast the deciding vote in the decision to uphold the individual mandate as a tax, he did so while ingeniously handing conservatives an historic victory by reining in Congress’ power under the Commerce Clause. This case provides yet another opportunity for the Chief Justice to display his judicial deftness by safeguarding the Court’s long-term credibility in the eyes of the public while simultaneously delivering an important benefit to the right.

thehill.com

O'Reilly is a J.D. candidate at Brooklyn Law School.