The faint hope for traditional marriage

David Benkof Contributor
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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.

But only one Republican voted against Alito, while none opposed Bush’s earlier nomination of Chief Justice John Roberts. Similarly, all Senate Democrats supported Obama nominee Sonia Sotomayor, and only one opposed Elena Kagan. So even if Portman’s family situation leads him to prefer justices who would support same-sex marriage, and even if LGBT groups pressure Kirk and Murkowski, all three will still likely support their president’s picks.

Republicans could confirm their party’s Supreme Court nominees with a simple majority vote, thanks to the Democrats’ termination of the long-standing cloture rule requiring 60 Senators to end debate. [Editor’s note: first a GOP-led Senate would have to eliminate the filibuster for Supreme Court nominees, extending the November 2013 rules changes passed by a Democratic-led Senate. Some Republicans have already pledged to do so.] And since judicial nominees almost always get at least some support from the opposition party, reasonable Republican Supreme Court choices could surely be confirmed by a GOP Senate.

Compared with just a half-year ago, the prospects for Republican victories this fall and in 2016 have become much stronger. Of course, three years can be a generation in politics. But with each Republican success over the next 35 months, the “inevitable” advancing tidal wave of gay marriage may finally start to subside and even retreat.

David Benkof is a teacher and freelance writer. He can be reached at DavidBenkof@gmail.com.