On the wrong side of history

Patricio Navia

Buenos Aires Herald, April 2, 2013


As the Supreme Court prepares to issue a historic ruling on same-sex marriage in June, Washington politicians are rushing to position themselves on the right side of history. Since support for same sex marriage is increasing—with younger American strongly in favor—the legalization of gay marriage is just a matter of time. After most democrats have joined those supporting legalization, several prominent Republicans are doing the same. However, since opposition to gay marriage remains high in several strongly Republican states, gay marriage threatens to cause a divorce between the conservative and libertarian wings of the Republican Party.


Nine states, including New York, have legalized it marriages in recent years. In November of 2012, voters in three states—Maine, Maryland and Washington—voted to legalize same sex marriages. Other states—including California and Illinois—have provisions for same-sex domestic partnerships. However, the evolution of same-sex marriage legalization has not been uniform. In 2012, North Carolinians overwhelmingly voted to ban it. In California, after the state supreme court legalized it in May of 2008, a referendum against same-sex marriages—known as Proposition 8—was passed in the 2008 election, leaving in a limbo hundreds of same-sex couples who were legally married. In 2010, a U.S. district court ruled Proposition 8 unconstitutional. In late 2012, the U.S. Supreme Court agreed to review the ruling.  Both sides argued before the court last week. Observers predict that the court will uphold the lower court decisions. As the most populous states move forward with legalization, smaller states will be hard pressed to follow suit or at least to recognize marriage licenses issued elsewhere to remain competitive for businesses and attractive to the more tolerant educated workforce.  


Support for gay marriage has also systematically increased in recent years. The Pew Research Center has conducted since 2003 regular polls assessing support for gay marriage in the U.S.  In 2003, only 30% of Americans supported gay marriage while 62% opposed it. In 2012, 47% favored legalization and 43% opposed it.  Support for gay marriage is higher among younger and better educated Americans.  Thus, with generational replacement, opposition to same-sex marriage will continue to decline in future years.


However, the evolution of support for gay marriage has not been uniform across the U.S.  Conservative southern states continue to have solid majorities against gay marriage.  There are at thirteen states in the union with a solid majority against gay marriage. In ten other states—including Texas and Florida—the population is almost evenly split among supporters and opponents, though the younger population in those states is also more accepting of gay marriage. Thus, even if same-sex marriage will eventually have majority support in most states, for the next couple of decades several states will continue to have solid majorities staunchly opposed to gay marriage.


Las week, the U.S. Supreme Court heard two cases that have direct relationship with the debate over the constitutionality of banning same-sex marriages.  In addition to the case on the constitutionality of Proposition 8, the Supreme Court heard a case on the constitutionality of the Defense of Marriage Act (DOMA), a legislation passed in 1996 aimed at preventing the Federal Government from recognizing same-sex marriages. Decisions on both cases are expected in June.  Though conservatives are a majority in the court, most observers believe the court will issue narrow rulings in favor of gay marriage applicable to these two cases. But the court is not expected to rule on the larger question of the constitutionality of gay marriage.  The staunch opposition to gay marriage among many conservatives—and in several states—will dissuade the court from making a sweeping decision that will polarize the country.  The division over Roe v. Wade, the 1973 decision that ruled abortion constitutional has taught the court to be more cautious about taking sides on controversial issues. Besides, gay marriage is making its way to becoming the law of the land without the intervention of the court. 


The decision by several prominent Republicans to publicly express their support for gay marriage might seem as opportunistic.  Since it will likely become law in many other states soon, it is politically convenient for Republicans to drop their opposition to gay marriage. However, since many Republican leaders represent states where there is still strong opposition to gay marriage, not all Republicans in Washington agree on what is best for the party.  For them, opposition to same-sex marriage is still the dominant electoral strategy.


As the country prepares for a heated and intense debate on how fast same-sex marriage should become law in the remaining states when the Supreme Court issues its ruling in June, the Republican Party will find itself divided among those moderates who want to appeal to younger and more tolerant voters and those conservatives whose support base remains strongly opposed to same-sex marriage. Though nobody wants to be on the wrong side of history, many Republicans from conservative districts worry more about their re-election in 2014 than about how history will see them.