On Tuesday the Massachusetts Supreme Court ruled that prohibitions against same-sex marriage were unconstitutional. The ruling was acclaimed by gay-rights activists throughout the country, but it was also met with guarded optimism by Democrats and Republicans alike, both of whom see the issue as a potential political winner in 2004.
The decison is thought automatically to favor Republicans by giving the president's conservative base a wedge issue to get worked up about. But it's plausible to think that the Democrats could benefit. President Bush, to win in 2004, needs to attract moderate "swing" voters, the kind of people who warm to the message of "compassionate conservatism" but are turned off by extreme moralism.
The challenge for Republicans is to ensure that their arguments against gay marriage don't come wrapped in blanket condemnations of homosexuality, as it tends to in the rhetoric of the Christian Right. Recent polls show that most Americans oppose gay marriage -- an October Pew poll found 59 percent in opposition -- but others indicate that acceptance of homosexuality is on the rise. A May Gallup poll found that acceptance of gay relationships has reached 60 percent, up from last year's 52 percent. When asked whether they supported same-sex civil unions, 49 percent of respondents answered affirmatively.
Democrats, too, are treading carefully on the issue. Most of the party's presidential candidates say they're opposed to same-sex marriages, but some support civil unions for gays. The calculus behind this hedging is simple enough: Democrats have to be pro-gay enough to hold on the the core Democratic primary voters, but not so pro-gay as to be out in front of mainstream public opinion.
The Massachusetts decision gave the state legislature 180 days to adapt marriage laws to reflect the new ruling. The ruling emphasizes the "enormous private and social advantages" a marriage brings that a civil union does not. According to Slate's Josh Levin, the state legislature is left with three basic options: allowing gay couples to legally wed; replacing civil marriage with an equal opportunity civil unions, or doing nothing for the next 180 days which would allow the Supreme Court to them begin issuing marriage licenses.
The 180 days gives those opposed to same-sex marriage plenty of time to mount a counteroffensive. In fact, conservative Christians and Republican groups already have plans underway. House majority leader, Tom DeLay, responded to the announcement with a plan to punish the liberal "runaway judiciary via a constitutional amendment banning gay marriage.
"When you have a runaway judiciary, as we obviously have, that has no consideration for the Constitution of the United States, then we have available to us through that Constitution (a way) to fix the judiciary."
Massachusetts governor, Republican Mitt Romney, announced he would push for an amendment to the state constitution to block the court's decision, although such an amendment won't make it to the voters until 2006. Tim Grieve writes in Salon that the Christian Coalition is working closely with Republican Congresswoman Marilyn Musgrave of Colorado, who has already introduced a constitutional amendment banning anti-gay-marriage of the kind hinted at by DeLay. A similar bill is being crafted for the Senate by the Senate Judiciary Committee, with the support of the Traditional Values Coalition. The conservatives are on the move, with no time to be wasted on this issue. As the National Review puts it, the court is sanctifying the erosion of marriage. As one Republican senate aide told the Christian Science Monitor, the timing couldn't be better.
"The fact that this is the headline in the news is something you can't pay enough for if you're Bush
It raises the profile of a controversial social issue that Republicans believe will work to their advantage, particularly against a certain former governor of Vermont. This is turf the Republicans feel comfortable playing on."
The legal battle continues to rage in the courts, but it's somewhat unclear how the candidates will handle such a tricky issue. Between his meetings in London, President Bush issued a statement reiterating his well known view that marriage should remain between a male and a female. "I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage," Bush said. Noticeably absent from the president's remarks was an endorsement for the GOP initiative to amend the constitution. What's not clear in all this is how Bush will go in his crusade to keep marriage strictly heterosexual. Will he join the hardcore anti-gay ranks of his party? Or take a more tepid tone? If the latter, he risks alienating conservative voters, as his father did in 1992, to his cost.
But some argue that the issue is not lost to Democrats. As Robert B. Reich writes in the American Prospect the issue should be framed less as one about marriage and more as a matter of equal rights and a sensible separation between church and state.
"Democrats should call all this for what it is -- a clear and present danger to religious liberty in America. For more than three hundred years, the liberal tradition has sought to free people from the tyranny of religious doctrines that would otherwise be imposed on them. Today's evangelical right detests that tradition and seeks nothing short of a state-sponsored religion. But maintaining the separation of church and state is a necessary precondition of liberty.
Gay marriage doesn't have to be a wedge issue for the evangelicals -- not if Democrats can put it where it belongs, as another front in the religious wars. The question of whether gay couples should be treated the same as married people need not and should not involve the religious meaning of "marriage." That's up to particular faiths and congregations to decide. The issue here is whether gays should have the same legal rights as heterosexuals -- survivor's benefits under Social Security, alimony, the distribution of assets when relationships end in divorce and other legal privileges now conferred only on heterosexual couples."