The Roe V. Wade Of Gay Marriage Is Coming

W. James Antle III Managing Editor
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The Supreme Court will begin hearing oral arguments in a key gay marriage case Tuesday. Does anybody doubt the outcome? A majority will almost certainly find there is a constitutional right to same-sex marriage.

The court didn’t think the Constitution required all 50 states to recognize same-sex marriage as recently as 2013, when the United States v. Windsor was decided, though the justices did vote 5-4 to overturn California’s Proposition 8 that same day.

But everyone is now evolving, on the Constitution, the definition of marriage and so much else. Eleven years ago, President Barack Obama denied that marriage was a civil right. When he first endorsed gay marriage in 2012, he suggested marriage policy should ultimately be left up to the states. Now he believes there is a constitutional right to marry a person of the same gender.

Hillary Clinton has undergone a similar evolution. She defended the federal Defense of Marriage Act, signed into law by her husband, for more than a decade. When the Supreme Court struck down a portion of the law, the Clintons praised the ruling without admitting their role they played in enacting it in the first place.

Bill Clinton has gone from bragging about signing the Defense of Marriage Act in ads on Christian radio stations during his 1996 re-election campaign to calling the law “discrimination.” Hillary Clinton has gone from being in favor of states recognizing gay marriage to requiring them to do so.

These shifts have come with changes in public opinion. One Wall Street Journal/NBC News poll found that support for gay marriage has nearly doubled since 2004.

If you look at court decisions asserting that the Constitution was incompatible with states defining marriage as the union between a man and a woman, you fill find passionate defenses of same-sex marriage and confident assertions that any linkage between marriage and reproduction is nonsense. You might find references to gay marriage polling. What you won’t find is much about the Constitution, or how its meaning has changed.

Republicans have resorted to arguing that the definition of marriage should be decided by the people, not the courts. But unlike the first judges who ruled in favor of same-sex marriage, if the Supreme Court hands down a Roe v. Wade of gay marriage, they will moving in the same direction as the people, just faster.

We are left debating whether a small group of wedding vendors should be allowed to conduct their business according to a definition of marriage that was almost universally held the day before yesterday — and Republicans aren’t even winning that debate.

Yes, there is a sense in which the Supreme Court’s decision will be an “exercise of raw judicial power,” just as Justice Byron White described Roe v. Wade in his 1973 dissent. But it is more than that, a fact conservatives ignore at their peril. The decision will ratify a growing consensus among large swathes of the American people, even if there remains significant disagreement in the country as a whole.

The blogger Noah Millman has described gay marriage as the “capstone achievement of the ‘Romeo and Juliet revolution’ that treats marriage as rooted in love, and that sees its legal purpose as an institution for mutual aid and responsibility between individuals.”

This revolution has indisputably enhanced human happiness, but it’s also coincided with marriage becoming less stable, less permanent and less prevalent in many communities, including some neighborhoods of troubled Baltimore. Mutual aid between adults does not always translate into protecting the interests of children.

It will soon have the Supreme Court’s stamp of approval. Book it.

Republicans don’t know how to deal with this new reality, but they’ll need to learn.

W. James Antle III is managing editor of The Daily Caller and author of the book Devouring Freedom: Can Big Government Ever Be Stopped? Follow him on Twitter.