The Daily Caller

The Daily Caller
              FILE - In this June 27, 2012, file photo law enforcement officers set up a perimeter controls in front of the U.S. Supreme Court on the eve of the expected ruling on whether or not the Affordable Care Act passes the test of constitutionality in Washington. The Supreme Court new term, which starts on Monday, Oct. 7, 2013, may be short on the sort of high-profile battles over health care and gay marriage that marked the past two years. But several cases ask the court to overrule prior decisions, bold action in an institution that relies on the power of precedent. (AP Photo/Alex Brandon, File)

The faint hope for traditional marriage

Photo of David Benkof
David Benkof
Freelance Writer

Recent court victories for gay couples in red states such as Oklahoma and Utah appear to leave traditional marriage on its last legs. Indeed, last year, several prominent American conservatives such as Rush Limbaugh and Charles Krauthammer said they consider coast-to-coast gay marriage inevitable. But the political environment has changed, and the ideological composition of the Supreme Court could very well be different when it hears another marriage case. Republican victories in this fall’s Senate elections and the 2016 presidential race could help arrest the trend toward same-sex marriage.

In June, after the court overturned the part of the Defense of Marriage Act that limited federal marriage benefits to male-female unions, Krauthammer wrote that Anthony Kennedy’s majority opinion had “planted the seed” for the next same-sex marriage case to nationalize the institution. Indeed, United States v. Windsor took a step in that direction by applying Fifth Amendment equal liberty protections to gay couples for federal (though not yet state) purposes.

But the Court’s recent delay of Utah’s gay marriage case almost certainly excludes a broad ruling this term. Therefore, even a vacancy before the November Senate elections wouldn’t enable a new justice to participate in a marriage decision until 2015. Three of the four most senior members of the Court (Kennedy, Ruth Bader Ginsburg, and Stephen Breyer) voted with the Windsor majority, so Democrats replacing any of them with same-sex marriage supporters wouldn’t change the judicial balance.

However, if Republicans take the Senate this year, they can just run out the clock until a new president is elected. When Lyndon B. Johnson nominated Abe Fortas as Chief Justice in 1968, the GOP did precisely that, allowing Richard Nixon to appoint Chief Justice Warren Burger the next year.

Of course, all nine current justices may remain until the next administration. For instance, Ginsburg (the oldest justice at 80) has repeatedly stated that her capability to work, rather than political considerations, will dictate her retirement date.

A Republican president supporting traditional marriage and nominating like-minded justices would upend America’s entire gay marriage calculus. He or she would presumably replace 77-year-old Antonin Scalia with another traditional marriage supporter (though it’s notoriously difficult to predict Supreme Court justices with lifetime appointments). But any other picks would likely shift the makeup of the Court rightward. So the 5-4 Windsor majority could easily become a 5-4 traditional marriage majority, or even a 7-2 court rejecting a constitutional right to same-sex marriage.

Replacing Kennedy, 77, would be particularly significant. He serves as the court’s ideological center and swing vote, though he is generally conservative. Still, he wrote forceful majority opinions in three landmark LGBT rights decisions: Romer v. Evans (1996), which protected the right of gays to push for local non-discrimination laws, Lawrence v. Texas (2003), which overturned anti-sodomy laws, and Windsor.

Three Senate Republicans do support gay marriage: Ohio’s Rob Portman, Illinois’s Mark Kirk, and Alaska’s Lisa Murkowski. Portman’s openly gay son helped him buck his party on the issue, and the other two are fairly centrist. But disagreeing with one’s president on a particular issue rarely translates into voting against his judicial nominees.

In 2006, for example, several staunchly pro-choice Republican senators including Maine’s Susan Collins and Pennsylvania’s Arlen Specter voted to confirm Samuel Alito, President George W. Bush’s nominee to replace pro-choice Sandra Day O’Connor. Alito had once said the Constitution does not protect a right to an abortion, and most observers expected him to maintain that stance on the Court.