The Politics of Same-Sex Marriage: Republicans Being Republicans

by Mark Gordon

This piece originally appeared at Aleteia

The politics of “gay marriage” have always been rather complex, but they just got a little more fluid with the revelation that a large number of prominent Republicans are urging the Supreme Court to overturn California’s Proposition 8, which banned same-sex marriage in the state in 2008. (It could almost be considered an ironic case of bipartisanship, given the fact that the Obama administration is also filing a brief in support of same-sex marriage.)  But before we get to the politics, it’s worth reviewing how we got here.

On September 21, 1996, with the specter of gay marriage looming in several states, Democratic President Bill Clinton signed into law the Defense of Marriage Act (DOMA), which had passed the Congress with large majorities of 85 to 14 votes in the Senate and 342 to 67 votes in the House. Most Senate and House Democrats voted ‘aye,’ and they were joined by all but one Republican in the House. The act, which remains the law of the land, states that for the purposes of federal policy, including acts of Congress, the word “marriage” means the legal union of one man and one woman. It also specifies that no state is required to recognize any other state’s alternative definition of marriage, such as the legal union of two men.

In signing the legislation, President Clinton made clear that, from his point of view, “the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence, or intimidation against any person on the basis of sexual orientation,” a sentiment with which nearly all agreed. In the 1996 election, both Clinton and his Republican opponent, Senator Robert Dole, opposed same-sex marriage.

During his presidency, Republican George W. Bush proposed a constitutional amendment to define marriage as the legal union of one man and one woman, citing concerns that DOMA might be overturned as unconstitutional. He later let the amendment languish without active support. In both his 2000 and 2004 presidential campaigns, Bush opposed same-sex marriage, a position shared by his opponents, Vice President Albert Gore and Senator John Kerry, respectively. In 2008, the Democratic Party platform explicitly called for the repeal of DOMA, despite the fact that the Democratic nominee for president, Senator Barack Obama, claimed to be opposed to SSM. Obama’s opponent, Senator John McCain, opposed same-sex marriage, as did the GOP platform.

On June 4, 2008, the California Supreme Court, following a similar ruling in Massachusetts four years earlier, declared that existing statutes banning same-sex marriage in California were unconstitutional. The Court further ordered town and county clerks to begin registering same-sex marriages no later than June 19 of that year, which they did. A firestorm ensued, and because of California’s unique voter initiative laws, Proposition 8 appeared on the ballot on November 4, 2008. Proposition 8 was a simple measure: it explicitly amended the California state constitution with these words: “Only a marriage between a man and a woman is valid or recognized in California.” Republican Arnold Schwarzenegger, then Governor of California, opposed the measure, as did most of the state’s leading Democrats. After a raucous campaign, California voters approved the Proposition 8 on a vote of 52%-48%. The very next day, the proposition’s text became a part of the state constitution. No more same-sex marriages were permitted, although those that had been performed prior to the vote were deemed to be valid.

Federal lawsuits seeking to overturn Proposition 8 followed the vote, including one – Perry v. Schwarzenegger – that reached US District Court Judge Vaughn Walker in 2010. Walker ruled in favor of the plaintiffs, declaring that Proposition 8 was an unconstitutional violation of the Due Process and Equal Protection clauses of the US Constitution. He issued an order overturning Proposition 8, but also a stay of his own ruling while the case moved higher in the federal appeals system. Last year, the Ninth Circuit Court of Appeals, which has jurisdiction over California, refused to reverse Walker’s decision but continued his stay, recognizing that the case, now known as Hollingsworth v. Perry, would eventually be heard in the Supreme Court. And, in fact, the Court issued a writ of certiorari – an agreement to hear the case – last December. Oral arguments in Hollingsworth v. Perry will be heard on March 26, with a ruling expected in June, at which point California’s long battle over SSM will presumably be settled. And hot on the heels of Hollingsworth v. Perry is the case of Windsor v. United States, which challenges DOMA itself. Arguments in Windsor will be heard on March 27.

Here’s where the politics get interesting. It was widely expected that a case like Hollingsworth v. Perry would find its way to the Supreme Court. What was not expected was that over 80 prominent Republicans have joined an amicus curiæ (“friend of the court”) brief in the case, effectively urging the Court to legalize SSM in the nation’s most populous state. The signatories include former Utah governor and presidential candidate John Huntsman, former California gubernatorial candidate Meg Whitman, four former GOP governors, a former chair of the Republican National Committee, several prominent campaign advisors and media figures, and former Vice President Dick Cheney’s daughter, Mary, who is gay. According to the story, several other even more notable Republicans are supportive of SSM, but have not signed the brief. They include Cheney, former First Lady Laura Bush, and former Secretary of State General Colin Powell. It is also worth mentioning that Republican Ted Olson, who was Solicitor General under President George W. Bush, is lead counsel for the plaintiffs in Hollingsworth v. Perry.

What’s happening here? Since at least 1980, the Republican Party has carved out a reputation as the “conservative” alternative, the party committed to preserving “family values.” And yet, here we have a large number of leaders breaking with the party on an issue of vital importance to its base of Southern religious conservatives. The answer, of course, is that politics is happening.

Even accepting that those who have signed the brief did so in good conscience, they have doubtlessly also concluded that it is good politics. Polls taken on the subject of SSM have shown growing support, especially in states that Republicans need to win in order to take back the White House and maintain their majority in the House. Key battleground states like Ohio, Colorado, Michigan and Florida now have solid majorities in favor of SSM, and they are followed closely by states like Wisconsin, Iowa, and even Virginia. Demographically, the GOP is in a bind, as well, with majorities of younger voters, women, and Hispanics also in support of SSM.

Forty-five years ago, Richard Nixon launched his “southern strategy,” which was designed to peel the Deep South away from the Democratic Party by appeals to the region’s deeply religious cultural conservatism and ingrained hostility to federal power. The strategy was a spectacular success, so successful that the GOP had a virtual lock on the White House for two decades. During the 24-year period from 1968 to 1992, the Republicans held the presidency for twenty years, and there was talk about the Democratic Party becoming little more than a bi-coastal afterthought in presidential politics. During that period, the GOP even had occasional majorities in both houses of Congress, something that hadn’t happened since the 1930s. But the nation has changed; today, it is the Republican Party that is in real danger of becoming a regional party isolated from the rest of the nation by geography and demography.

The GOP is also in a philosophical bind, especially on issues like SSM. In the recent past, the party has promoted a form of classical and economic liberalism that is highly individualistic and unrelenting in its focus on “rights.” Pope Paul VI encapsulated this philosophy when he warned against the revival of an “erroneous affirmation of the autonomy of the individual in his activity, motivations, and the exercise of his liberty.” What the Pope knew that many of today’s rank-and-file Republicans don’t is that the economic liberalism promoted by the GOP is the feedstock of modern liberalism, with its seemingly limitless insistence on the expansion of rights and obsession with all things “pelvic.” Just compare the language: the GOP talks endlessly about economic ‘liberty’ and especially freedom from government restraint and oversight. Those same arguments are the ones made in the case for SSM, a fact acknowledged even by the chief counsel in Hollingsworth, Ted Olson, who says the case is really about “limited government and maximizing individual freedom.” Or, as Dick Cheney said years ago when he came out for gay marriage, “freedom means freedom for everybody.”

Where are the politics of SSM taking us? There will no doubt be a huge fight within the Republican Party over the next few years. There will be factions who fight the SSM battle to the bitter end, but in the final analysis political parties are about winning votes and exercising power. If, as it appears, the balance of power in the nation is shifting toward SSM, the GOP will get on the bandwagon, perhaps sooner than anyone thinks. Minnesota State Auditor and Republican National Committee member Pat Anderson says it all: “I believe this is an issue about freedom and liberty.”

Freedom and liberty. That’s the GOP’s gospel, and it will likely lead the party to embrace same-sex marriage. Catholics have another Gospel, of course – one that places virtue, responsibility, solidarity, and human dignity above the “affirmation of the autonomy of the individual in his activity, motivations, and the exercise of his liberty.” That’s why the Church can’t accept same-sex marriage. It’s also why Catholic Republicans will eventually be left out in the cold.