The politics of same-sex marriage constitutional adjudication

Elahe Izadi at the National Journal suggests that a Supreme Court ruling that the Constitution confers the right to same-sex marriage would help the Republican Party. I agree.

Public sentiment seems to be moving rapidly in favor of requiring the state to recognize same-sex marriages. This leaves Democratic candidates increasingly free to “come out of the closet” on this issue and embrace the emerging view. On the other hand, Republican candidates will alienate social conservatives, a key part of the base, unless they hold firm in opposing same-sex marriages. And, public opinion aside, many Republican candidates probably want to hold firm for moral reasons. Yet holding firm against gay marriage tends to alienate independents and moderate Republicans.

If the Supreme Court finds a constitutional right to same-sex marriage, its decision might go a long way toward taking the issue off the table. Republican candidates would have the option of saying that, whatever their personal view, the issue has been settled by the Supreme Court. They would also have the option of railing against the Court’s decision if doing so would not hurt them in a their particular race.

To be sure, as Izadi notes, a broad Supreme Court ruling in favor of same-sex marriage could have the opposite effect. Such was the case when the Supreme Court found a constitutional right to abortion. That ruling transformed abortion into a massive long-term political issue.

But I doubt that this would happen with same-sex marriage. Unlike with Roe v. Wade, a clear majority of the public would either accept or not bitterly resent a Supreme Court ruling finding a constitutional right to gay marriage. And the fact that young voters overwhelmingly support this “right” means that the issue wouldn’t play much of a role in politics for long.

It should go without saying, though, that political consequences — even if we think we can predict them accurately — are beside the point when it comes to constitutional adjudication. All conservatives, whatever their view on the merits of same-sex marriage, should be appalled if the Supreme Court finds it a constitutional right. The appropriate reaction would be to mourn for our Constitution, not to take consolation in the prospect of political gain.

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