With the Supreme Court set to debate marriage equality this month, conventional wisdom inside the Beltway has it that the court will likely overturn both the Defense of Marriage Act and California’s Proposition 8 on grounds that both violate the U.S. Constitution’s equal protection clause. The vote, says CW, would likely come down to a 5-4 decision, with Justice Anthony Kennedy, a moderate from California, siding against his fellow Republicans by voting with the court’s liberal block.
Kennedy threw cold water on that assumption last week when he told reporters that he’s suddenly become concerned about the Supreme Court holding sway over issues best left to elected officials, which is to say voters:
“I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said. “And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.”
This might seem like the principled view if if were not for the fact that it was with Justice Kennedy’s swing vote in Bush v. Gore that the court appointed George W. Bush to the presidency in 2000 over the will over Florida voters.
If Kennedy sides with his fellow Republicans and votes to uphold DOMA and Prop 8, it will represent a major setback for gay civil rights in general and marriage equality specifically. Although there has been a major shift in public attitudes toward the status of gay people in American society of late — as shown in the relative ease with which the military handled the overturning of Don’t Ask, Don’t Tell, for example — it will likely take another generation before a landmark case on gay rights would make it before the court again.
DOMA, which restricts gay married couples from the rights and responsibilities opposite-sex couples receive from the federal government, comes with its own set of issues — gay widowers are excluded from receiving Social Security benefits, for example, and married gay couples can file joint tax returns in their home states but have to file separately as individuals for the IRS, and on and on.
But, no matter how Justice Kennedy votes, Prop 8 is likely doomed. If the court upholds it, it is all but certain that supporters of marriage equality will place a repeal of Prop 8 before California voters next year.
Based on results of A Field Poll released at the end of February, the repeal initiative — an anti-Prop 8 prop — would almost certainly win. The poll found that 61 percent of Californians now support gay marriage, while 32 percent are opposed. That represents a 60 percentage point swing in the state over the past 36 years.
If an anti-Prop 8 prop becomes necessary, it would ideally appear on the ballot for November 2014 gubernatorial elections, which coincides with the midterms for the U.S. House and California legislature. All signs point to good results for Democrats that year. If Gov. Jerry Brown — who will be 75 next year — decides to run for reelection, barring something unforeseeable now, he’ll be a shoo-in. If he decides to retire, the Democrats have a strong bench of prospective candidates. Republicans have no one — and that is not hyperbole. There is literally no Republican candidate with statewide name recognition, much less statewide appeal, and the likelihood someone will emerge between now and then is practically nil.
If the polls remain consistent, a repeal initiative on the ballot in November 2014 might even drive Democrats and independents to the polls, which would help elect more Democrats down ticket and further reduce the number of Republicans in the California U.S. House delegation from the current level of 15 out of 53 seats.
But what about the Mormons? When Prop 8 was on the ballot in 2008, the California Republican Party was broke and could not afford to run ads against same-sex marriage — an issue that had helped drive Republicans to the polls and boost electoral results for the GOP in other states. A call for help went out that was answered by the Mormon Church in Utah, which quietly contributed $20 million to the anti-gay campaign, most of which was spent on ads targeted at low information voters that insinuated that without Prop 8, elementary school children would somehow be targeted for recruitment by gays.
As the chart at the top shows, the deceptive advertising worked. Proposition 8 passed by 52.24 to 47.76 percent, despite the fact that Barack Obama won California with 61 to 37 percent. (Oddly, however, Republicans lost seats in the legislature that November.)
Since then, Californians have developed a healthy resentment over the fact that folks in Utah — which does not even border California — meddled in state politics. It’s likely that if they tried it again, their meddling this time would hurt their cause.
The downside for the rest of the country if Kennedy joins Scalia and the other Republicans and votes to uphold Prop 8, or even if the ruling is somehow so narrow that it applies only to California, is that the status quo will prevail in the 40 or so other states where gay marriage is prohibited, and gay people who want to marry there will have to wait until the tide of public opinion shifts in their favor as it has done in California.