Josh Gerstein speculates about a pair of SCOTUS gay marriage rulings that would overturn DOMA and Prop 8 but “fail to deliver the kind of transformative moment many in the gay rights movement had hoped for.” Alex Burns gives some anonymity to Republican pollsters who want the court to just snuff out the damn issue already “We can’t continue to fight a losing battle on gay marriage and gay rights, and if we need the Supreme Court to help in that regard, so be it.”
We’re a long, long way from 2004, when Stanley Kurtz could comfortably predict that failing to oppose gay marriage in one state would hurt John Kerry. (Kerry maintained that he supported civil unions, as did his running mate, noted Sanctity of Marriage defender John Edwards.) At the time, Kurtz perceived that the marriage issue would be “pervasive” as state after state put constitutional amendments on their ballots.
But that’s the problem with this “just hand it to SCOTUS” theory. Let’s say DOMA and Prop 8 are overturned, but without a decision that finds a constitutional right to gay marriage. In order to legalize or ban gay marriage, you’ll need to fight new campaigns, state to state. Oregon passed a ban with 57 percent of the vote in 2004; we can safely extrapolate that its liberal voters would undo that, given a chance and a well-drawn repeal amendment. Polling in Ohio, Wisconsin, and Florida suggests that voters would undo their marriage bans.
But what happens in states like Mississippi and Alabama? Both passed “sanctity of marriage” amendments with more than 80 percent of the vote, less than 10 years ago. To legalize gay marriage, activists will need to overturn them with new initiatives. Will the Democrats of 2014 want that on the ballot? The Democrats of 2016? In some number of states, this is going to cut against them.