The Supreme Court Can Save Republicans From Gay-Marriage Mess

Josh Barro is the lead writer for the Ticker, Bloomberg View's blog on economics, finance and politics. His primary areas of interest include tax and fiscal policy, state and local government, and planning and land use.
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In his pro-gay marriage op-ed last week, Republican Senator Rob Portman of Ohio repeated a common argument against the idea that the Supreme Court should find a constitutional right to gay marriage: "An expansive court ruling would run the risk of deepening divisions rather than resolving them."

This is exactly wrong. An expansive court ruling would settle the gay-marriage issue for good, eliminating the need for 20 years of state legislative fights that will be painful for gays and hugely politically damaging to the Republican Party.

Think about what will happen if the Supreme Court does not find a constitutional right to gay marriage. Popular support for gay marriage will continue to rise. A Washington Post / ABC poll out today has support at 58 percent, up from 37 percent in 2004. The trend toward support is accelerating, and support will probably reach two-thirds within this decade. But 30 states have constitutional provisions banning same-sex marriage; repealing these will take time and public effort, and they will persist long after they are unpopular.

Republican politicians will be in an uncomfortable situation: The remaining same-sex marriage bans will be very unpopular, but many in the conservative base will continue to favor the bans, and many Republican state lawmakers will vote against repealing them. And even after marriage equality becomes a settled issue in the north, Republicans will have to deal with the embarrassing problem of southern Republican politicians and voters clinging to their anti-gay laws -- much in the way that the retrograde racial politics of some southern Republicans have created national branding problems for the party in recent years.

In time, the share of states with laws against gay marriage will be small enough that they will face effective consumer boycotts, and corporations will yield to political pressure to shift business away from anti-gay states. It will be like if Loving v. Virginia had never happened, and Mississippi still had a law against interracial marriage in 1990.

A Supreme Court decision imposing gay marriage nationwide will not only make this problem go away, but it will also give Republican politicians a useful scapegoat to impotently shake their fists at. They can say they wish they could continue the fight against gay marriage, but alas, those judicial activists at the Supreme Court have made it impossible. And then, gradually, everyone who cares about stopping gay marriage will grow old and die, and we can stop talking about the issue.

When Republicans argue that a sweeping decision for gay marriage would sow longstanding division, they are comparing it to Roe v. Wade. But this analysis is wrong. Abortion remains a divisive political issue 40 years after Roe, but not because it was decided judicially. Abortion is a different kind of moral question than same-sex marriage, about what a life is, not what kinds of sexual morality the government ought to encourage; abortion supporters and opponents would not have reached consensus absent the Roe decision.

And why focus on Roe? Most court decisions that expand civil rights end up reducing division. Nobody talks about Brown v. Board of Education or Lawrence v. Texas as preventing Americans from reaching closure in fights over school integration and sodomy laws that could have been reached through the legislative process. Partly, this is because the court was moving in line with shifting public opinion on racial integration and gay rights. The same would be true of a decision this year in favor of gay marriage.

I get why Portman said what he did about the court decision. Portman doesn't sit on the Supreme Court; why antagonize conservatives by saying he wants judicial imposition of gay marriage when he can't actually affect the judicial outcome? But even if Portman doesn't want to say so publicly, the Supreme Court is in a position to save him and the Republican Party a lot of trouble.

Gay marriage opponents are going to lose the fight; the only question is whether they will lose it in a way that is quick and painless or long and ugly. If Anthony Kennedy or John Roberts vote to strike down all the state bans on gay marriage, Republicans will be furious with them, but the justices will in fact have done the party a huge favor.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.