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The Next Gay-Rights Hurdle for Republicans

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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Will Republican politicians breathe a secret sigh of relief if the Supreme Court establishes marriage equality throughout the U.S.? With most Americans -- particularly young voters -- in favor of gay marriage, such a decision would save conservative candidates from having to explain over and over why they adamantly oppose it.

But even if the court rules that way (and see Noah Feldman here at Bloomberg View today for some Scotus Kremlinology), it won’t be the end of lesbian, gay, bisexual and transgender issues in American politics. 

That's because Congress still hasn't passed legislation prohibiting employers from discriminating against workers based on sexual orientation. And since it's hard to see Republicans allowing the Employment Non-Discrimination Act to pass any time soon, this remains an issue -- both nationally and in states that don’t have an equivalent law. 

Both NPR’s Mara Liasson and the Upshot’s Nate Cohn don't get into this when they argue today that Republicans will benefit if the court guarantees nationwide marriage equality. If it disappears as a political issue, the argument goes, people will have to accept it and move on. 

But if Liasson, Cohn and other pundits are right that gay-rights issues cut against Republicans, then the end of the marriage debate may not matter much.

Barring discrimination against gays in employment decisions has always been much more popular than legalizing same-sex marriage. One study of polling back in 2013 found a majority supporting such legislation in every Congressional district. Democrats and gay-rights groups will push it more vocally, if the marriage question is settled.

It’s possible that, the polling notwithstanding, the marriage debate caught the attention of people (and the media) more than the Employment Non-Discrimination Act ever will -- in part because the Republican Party did its best to make marriage a big electoral issue.

And of course Republicans might find some way to shift popular opinion on the discrimination issue. They’re more likely to try that, expanding their “religious freedom” agenda, than they are to surrender, even if surrendering just means bringing up the bill and allowing it to pass with mostly Democratic and a handful of Republican votes. 

But employment discrimination isn't the only remaining subject in this area that could potentially get Republicans in trouble with younger voters. While it's possible that marriage will turn out to be the high point for gay, lesbian, bisexual and transgender concerns, and that quieter interest-group politics will prevail in the future, it's more likely that Republicans will continue to struggle with these issues -- and with the majority of voters who disagree with conservative positions on them. 

  1. Suppose Republicans had opposed same-sex marriage when it was proposed, but otherwise ignored it. No state ballot measures, no federal Defense of Marriage Act (signed by Democrat Bill Clinton, but proposed and passed by a Republican Congress), no campaign talk about it. Would support for marriage have become as high a priority, both for gay-rights groups as well as in general? Would public opinion have moved so quickly?

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

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Jonathan Bernstein at

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Katy Roberts at