One of the most widely discussed issues on the political right is the danger supposedly posed by judicial “activism,” when judges are said to substitute their personal preferences for the clear intent of the law and the Constitution. The Supreme Court in particular has been a target of those who oppose judicial overreach.
Overlooked by these critics, however, is the fact that many of the Supreme Court decisions the right loves to hate (from Roe v Wade to Lawrence v Texas) have actually expanded individual rights and limited government power, making them entirely consistent with the presumption of liberty found in the Constitution.
The latest issue to spark outrage on the right is gay marriage. Former Arkansas governor Mike Huckabee, for example, railed against it at a rally for traditional marriage this past spring in Washington, D.C. “Judicial supremacy is a curse upon this great Republic,” he screamed, calling last year’s Supreme Court rulings in the Defense of Marriage Act (DOMA) and Proposition 8 cases the “greatest heresy of our time.” In the DOMA case, the court overturned that part of DOMA that defined marriage as the union of one man and one woman for the purpose of awarding federal benefits and legal privileges.
At the time, few realized the scope of that decision, but its legal reasoning has sparked an avalanche of state and federal court decisions over the past few months overturning state bans on same-sex marriage around the country. In 26 consecutive court cases, in states like Virginia, Oklahoma, Utah, and even Texas, judges have ruled that same-sex marriage bans violate both the due process and equal protection clauses of the Constitution. There is little doubt that same-sex marriage will again come before the Supreme Court, and soon. In one fell swoop, the Supreme Court could legalize gay marriage in every state of the Union.
Such a decision by SCOTUS would be breathtaking and deeply unsettling to the anti-marriage equality movement. But it would also be a godsend to the Republican Party. Here’s why.
Like it or not, opponents of gay marriage are losing the battle, faster than even supporters imagined. A substantial majority of voters now support it, 59 percent in the latest Washington Post/ABC News poll. Only a third opposes it, and that number shrinks every year.
And it’s not just a partisan issue anymore. Forty percent of Republicans support marriage equality, including half of Republican Millennials (29 and younger). Even evangelicals, the heart of the opposition to gay marriage, are changing. According to the Public Religion Research Institute, a quarter of evangelicals support gay marriage. Another quarter personally opposes it but no longer wants to prohibit it. Among evangelical Millennials, 44 percent support it. In short, all but the true believers realize the war has been lost.
Unfortunately, those true believers are still the loudest voices in the Republican Party, the ones who write its platform and set its agenda. With them as the face of the party, 2016 presidential candidates who want to grow the party and expand its reach (think Rand Paul or Paul Ryan) will have a very difficult time doing so. Younger voters, women, and independents simply do not support the Republican Party’s anti-gay (not to mention anti-choice and anti-immigrant) agenda, and they are unlikely to flock to the Republican Party if its platform and leadership still stigmatizes gays and lesbians.