The issue of same-sex marriage has shined a spotlight on deep rifts within the Republican Party. On one hand, the dramatic shift in public opinion on the matter has put pressure on the Republican party to become more inclusive and adapt, or soften, their message of social conservatism. On the other hand, however, many Republicans, including a wide majority of Republican voters, believe that the Party must remain faithful to its traditional conservative principles. These positions have been increasingly in conflict since the November election, resulting in a civil war for the soul of the GOP. And with the Supreme Court set to hear oral arguments in two cases concerning gay rights later this month, this tension is finally getting the attention that it deserves.
“Change” became the watchword for many Republicans after the November election. “There are ways to grow our party, but its growth will require rethinking the proper role of government,” said Iowa GOP Chairman A.J. Spiker. “Change will require rethinking such important questions as whether marriage is an institution of government or the church, how to realistically address 10 million illegal immigrants in our county and under what circumstances should our sons and daughters be sent to war.”
For some in the party, the need to change is urgent. And at the end of February, this “change” manifested itself in the form of more than 100 prominent Republicans signing a brief urging the Supreme Court to strike down California’s same-sex marriage ban (Proposition 8 or “Prop 8”). The briefs signatories include a number of influential conservatives, including, among others: Meg Whitman, who supported Proposition 8 when she ran for California governor; John Huntsman, Jr., former Utah governor and 2012 presidential candidate; Beth Myers, senior advisor to Mitt Romney’s 2012 presidential campaign; Charles Bass, former member of Congress from New Hampshire; and Douglas Holtz-Eakin, an economist who advised Sen. John McCain’s 2008 presidential campaign.
Simply stated, the decision by these influential Republicans to submit a brief in this case, known as Hollingsworth v. Perry, is a remarkable step forward.
Of the two cases the Supreme Court will hear challenging the constitutionality of anti-gay legislation, the Prop 8 case is much more sweeping in scope. The other case, known as Windsor v. United States, involves a challenge to Section 3 of the Defense of Marriage Act (DOMA), which defines “marriage” for purposes of federal law as between “one man and one woman.” A decision to invalidate Section 3 of DOMA would be a monumental leap forward for same-sex couples in the eyes of federal law (particularly for federal tax purposes and federal benefits). But it would not necessarily lead to the Court federalizing the redefinition of marriage. Such a ruling would likely only grant same-sex couples who are legally married under the laws of their states (such as New York) the equal protection of the law. It would not invalidate the laws in the 29 states that ban same-sex marriage altogether.
The Hollingsworth case, in contrast, has a much greater potential to result in a ruling with nationwide implications. In Hollingsworth, the Court is being asked to decide whether banning same-sex marriage violates the Constitution’s guarantee of equal protection under the law, full stop. The Court has multiple off-ramps to avoid issuing a broad ruling. It could issue a decision that affects only California by deciding, for example, that once a state grants a fundamental right like marriage it cannot later take it away. It could decide that Proposition 8 is a legitimate exercise of the people’s right to amend their state constitution. Or it could decide that Prop 8’s backers did not have legal authority to stand in for California officials, who declined to defend the measure in court. But if the Court were to reach the question of whether the Constitution’s guarantee of equal protection permits the state to make legal distinctions between same-sex couples and those of the opposite sex, the implications of its ruling could be game-changing.
It is unlikely that the Court would issue such a ruling. The Supreme Court, with a few notable exceptions, rarely issues sweeping decisions on issues that engender as much controversy as same-sex marriage, preferring a more incremental approach to change.
In recognition of this, the Obama administration has approached the case cautiously. Reportedly, President Obama was directly involved in the decision over whether the government should enter the case at all. But even when it did, the Obama administration’s legal arguments did not urge the Court to declare a national same-sex marriage right immediately, even though the eventual demise of same-sex marriage bans is the inescapable conclusion of the brief’s reasoning. Rather, the administration’s brief appeared to be focused on winning the vote of Justice Anthony Kennedy, one of the only conservatives on the Court that has shown an openness to gay rights.
The Republican brief, in contrast, amounts to a full-throated endorsement of marriage equality. Indeed, the brief’s signatories call their argument “the conservative case for gay marriage.”
The brief, which preempted the Obama administration’s own brief in Hollingsworth, makes the argument that same-sex marriage is a constitutional right. The brief notes that its signatories, “like many Americans, have reexamined the evidence and their own positions” concerning same-sex marriage. And in doing so they “have concluded that there is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples.” The brief acknowledged that same-sex marriage is an issue that “divides thoughtful, concerned citizens.” But it argued that “this Court has long recognized that a belief, no matter how strongly or sincerely held, cannot justify a legal distinction that is unsupported by a factual basis, especially where something as important as the right to civil marriage is concerned.”
Of importance is not necessarily the brief’s content, but in what it represents. The Republican amici curiae in Hollingsworth amounts to a direct challenge to House Republicans, who have committed themselves, and $3 million of taxpayer money, to fighting against marriage equality in the Windsor case. In 2011, Attorney General Eric Holder announced the Obama administration would no longer defend DOMA on the grounds that they found it unconstitutional. It also amounts, however, to a direct challenge to the Republican Party more broadly. As the GOP has lurched further and further to the Right, moderate Republicans have been pathetically silent, particularly on social issues.
It would seem that this is no longer the case.
The Republican Party lags far behind public opinion on the issue of same-sex marriage. Fundamental changes have occurred in the American political landscape, and polling demonstrates a clear trend towards greater marriage equality. In 1996, for example, Gallup found that 68 percent of respondents believed that same-sex marriage should not be recognized as valid under the law, whereas only 27 percent agreed that it “should be valid.” But in 2012, 53 percent of respondents agreed that it “should be valid” whereas 46 percent of respondents agreed that it “should not be valid.” This was the highest level of support Gallup has found since it began tracking in 1996.
The Republican Party, however, remains stuck in the 1990s. In the same 2012 Gallup poll finding record support for same-sex marriage, Gallup found that only 30 percent of Republicans agreed that same-sex marriage “should be valid,” whereas a staggering 69 percent thought it “should not be valid.”
This hostility to same-sex marriage is reflected in the fact that the Republican brief in Hollingsworth garnered the support of only two current members of the Republican caucus in Congress, Rep. Richard Hanna (R-NY) and Ileana Ros-Lehtinen (R-FLA). And it helps explain why Republican organizations like CPAC can exclude the gay conservative group GOProud from its conference and (mostly) get away with it.
The CPAC debacle has prompted headlines like “What GOP makeover?” and makes it clear that the party is still dominated by social conservatives. But the Republican brief in Hollingsworth may represent an increased willingness by moderate Republicans to speak up and challenge the status quo. Moderate Republicans hold more power than they realize, and they might actually be able to change their party for the better.
The civil war brewing inside the GOP is a good thing for Republicans. It is also a good thing for America.