The One Thing That Could Slow Marriage Equality

There’s no question that marriage equality is on a roll, spurred by both the rapid shift in public opinion expressing itself through referendums and legislatures and by the federal courts in overturning state laws banning same-sex marriage. But Paul Waldman points to the one thing that could dramatically slow down that progress:

But there is one scenario by which what today seems like an inevitable forward movement for marriage equality could be undone, and it may be the only hope conservatives have left. It involves a Republican winning the White House in 2016 and a liberal justice retiring, to be replaced by a conservative.

This isn’t some remote possibility. We have no idea what the election of 2016 will be like, and while as a liberal you probably think that the current crop of Republican contenders are a bunch of bozos, people thought that about any number of people who ended up winning the White House (see Bush, George W.). As of now, Ruth Bader Ginsburg is 81, Stephen Breyer is 76, Sonia Sotomayor is 60, and Elena Kagan is 54. Any one of them could retire for any number of reasons. And once President Rand Paul appoints Ted Cruz to take that retiree’s place, things look very different.

Ginsburg is obviously the biggest concern. And it may well be that the conservatives on the court didn’t vote to take these cases for that reason entirely. This wouldn’t stop marriage equality entirely, of course, only the judicial path to achieving it nationwide. With the huge shift in public opinion, the legislative route is still very much alive, it’s just slower.

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  • Doug Little

    Ginsburg is obviously the biggest concern. And it may well be that the conservatives on the court didn’t vote to take these cases for that reason entirely.

    If this is indeed the case I find that disturbing. That would mean that the conservative judges have already made their mind up before actually hearing a case, what would their argument be against same sex marriage except for a religious one? There is no sane secular reason why same sex couples can’t get married, the lower courts have already tossed and laughed in the face of all the weak, bigoted arguments that the religious right/conservatives have come up with so far.

  • Childermass

    This is why it is so important to go full steam ahead on the legislative route. Liberals have a really bad habit of depending on the courts and it could really bite us all if we don’t get it done legislatively where we can. How come Proposition 8 has not been repealed? It could have been repealed years before. If the conservatives win in the Supreme Court, it is back in effect. Appropriate legislation can has the effect of sending a message that it is not just the courts, a message that politicians will hear. Legislation can also be written to punish officials in the bureaucracy that might choose to refuse to issue or honor marriage licenses.

  • Childermass

    “If this is indeed the case I find that disturbing. That would mean that the conservative judges have already made their mind up before actually hearing a case,”

    To be honest, the liberal ones have also made up their minds. The only justice who seems to indisputably in play is Kennedy. The only other justice that one might argue has not made up is John Roberts who might be worried about his legacy. Everyone else we can be 99% sure how they are going to vote.

  • Doug Little

    This is why it is so important to go full steam ahead on the legislative route

    How? The legislature is rigged (through gerrymandering) to favor conservatives, I can’t foresee a congress going forward that would be liberal enough to get anything done on marriage equality.

  • D. C. Sessions

    That would mean that the conservative judges have already made their mind up before actually hearing a case

    I find your lack of cynicism … disturbing.

    Please recall Citizens United, where Team Republican not only had their minds made up before the case was heard, they actually ruled on arguments that the parties didn’t bring up — the Justices brought their own (winning) arguments to trial and (wonder of wonders) found them compelling.

  • D. C. Sessions

    what would their argument be against same sex marriage except for a religious one?

    State sovereignty. Which Team Republican is really hot on promoting for obvious reasons (see Shelby County for a fine example.)

  • Doug Little

    To be honest, the liberal ones have also made up their minds. The only justice who seems to indisputably in play is Kennedy. The only other justice that one might argue has not made up is John Roberts who might be worried about his legacy. Everyone else we can be 99% sure how they are going to vote.

    Yeah, but both sides of the argument are not equal. One has a mountain of evidence to back it up the other not so much, the liberal judges are just not disputing the consensus opinion. I’ve still to hear a good argument against same sex marriage until the conservatives can produce a compelling one their reasons for opposing SSM are obviously religiously based.

  • colnago80

    The problem is that the “compassionate” conservative Dubya didn’t look like a bozo in 2000. And, in fact, his choice of Cheney for his vice-president was almost universally hailed at the time by the lamestream media, based on his extensive experience in government. By the way, Scalia is 78 as is Kennedy so they could also leave the court in the same time frame. What’s important is that the liberals who can’t stand Hillary Clinton not make the same mistake as they made in 2000 relative to Al Gore. If Gore had been elected in 2000 and reelected in 2004, Roberts and Alito wouldn’t be on the court.

  • Doug Little

    I find your lack of cynicism … disturbing.

    Please recall Citizens United, where Team Republican not only had their minds made up before the case was heard, they actually ruled on arguments that the parties didn’t bring up — the Justices brought their own (winning) arguments to trial and (wonder of wonders) found them compelling.

    Yeah, there’s always that. Now I feel like drinking.

  • Childermass

    “How? The legislature is rigged (through gerrymandering) to favor conservatives, I can’t foresee a congress going forward that would be liberal enough to get anything done on marriage equality.”

    That is an utter cop out. There are plenty of places where we can win legislatively. I mentioned California. That should have been taken care of legislatively years ago. There are plenty of other states too. Indeed most states are now doable in the here and now if we are willing to fight. I grant you that we won’t win in Oklahoma or Mississippi at the present time. But frankly, winning legislatively in other states will help us in the reddest states. (And even in the reddest states, we can probably win in 15 years if the rest of the country does not drop the ball.)

    Oh wait, are you thinking doing things legislatively means the U.S. Congress? The federal congress can’t legislative state marriage laws. That is something that is a state by state battle done in state legislatures and/or via referendums depending on the state constitution.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    I’m waiting for it federally, simply to see what Jim Crow laws they come up with to keep The Gays away from marriage (“I’m sorry, sirs, but you failed to correctly identify these pictures of team jerseys…”). Plus, when they protest and the police bring out the barriers and loudspeakers, all The Gays have to do is add velvet rope and appletinis and they’ve got themselves a dance bar.

  • colnago80

    Re Childermass @ #10

    Prop 8 was and amendment to the California State Constitution passed by referendum. I don’t think that the legislature can overturn it.

  • John Pieret

    colnago80 @ 12:

    Prop 8 was and amendment to the California State Constitution passed by referendum. I don’t think that the legislature can overturn it.

    California is, I believe, unique among the states in that it allows amendments to its constitution by simple majority votes at referendums. Prop 8 was passed in an midterm election by a narrow majority of about 4%. If a gay rights amendment was put on the ballot, especially in 2016, it would, I’m sure, win a smashing majority.

  • scienceavenger

    We have no idea what the election of 2016 will be like, and while as a liberal you probably think that the current crop of Republican contenders are a bunch of bozos, people thought that about any number of people who ended up winning the White House (see Bush, George W.).

    I am sick to death of these “people thought that” arguments, which almost never involve an apples-to-apples comparison, and this one is no exception. Oh, Bush might have been a bozo compared to Gore, but he’s a genius compared to this latest crop of GOPers. In my lifetime of watching presidential politics (starting with Reagan-Carter) there has never been a more ridiculous group than the current one.

    Further, no GOP candidate was up against the kind of electoral inertia facing whoever is unfortunate enough to be the nominee in 2016. If you count up the electoral votes of all the states that went either R or D every single year in the last 20, the scoreboard reads D – 242, R -121, which is unprecedented. It also effectively means all the Dem has to do is hold serve and win Florida, or Ohio along with one other double digit state. The only way the Dems lose in 2016 is if some sort of major scandal breaks, or something else unusual happens.

  • The Other Lance

    How does CA Proposition 8 get back before the SCOTUS? The litigation for it went there once already, and despite not getting a decision liberals _really_ wanted (finding a constitutional right for same sex marriage), it was decided and put to rest. I don’t see how that process gets jump-started again if the balance on the SCOTUS changes. There would have to be another voter referendum, for example, I think.

  • colnago80

    Re the other Lance @ #15

    The SCOTUS said that the folks who were appealing District Judge Vaughn Walker’s decision didn’t have standing to appeal and left his decision in place (i.e. they basically said there was no issue before the court). If a Rethuglican opposed to SSM were to be elected either Governor or Attorney General in California in 2014, admittedly a long shot, he would have standing and could appeal Walker’s decision. The SCOTUS specifically did not rule on Walker’s decision.

  • rork

    @13: In Michigan we also can alter constitution by simple majority with referendum. I advocate that we do this no matter what the courts give us, just to silence those who would complain it was not the will of the people. Such a referendum in 2004 gave us a constitutional amendment banning same-sex marriages (with other evils). 58.6% of my fellow citizens voted for it at the time. Our constitution is like a rag on a stick, that switches whenever the wind changes – and the wind has changed.

  • http://www.facebook.com/mmiecielica michael kellymiecielica

    @John Pieret

    “Prop 8 was passed in an midterm election by a narrow majority of about 4%.”

    This doesn’t really change your overall point, but Prop 8 passed in the 2008 general election.

  • Doug Little

    Oh wait, are you thinking doing things legislatively means the U.S. Congress? The federal congress can’t legislative state marriage laws. That is something that is a state by state battle done in state legislatures and/or via referendums depending on the state constitution.

    Yeah sorry I was thinking from a federal perspective. Aren’t state legislatures full of even more wingnuts than at the federal level? You are right though, it’s worth the fight.

  • John Pieret

    michael kellymiecielica:

    This doesn’t really change your overall point, but Prop 8 passed in the 2008 general election.

    Opps! Maybe it just felt like a midterm election because a presidential election in California is such a foregone conclusion that the democratic base didn’t bother to come out that much. Run it again and the result would still be massively different.

    rork:

    Our constitution is like a rag on a stick, that switches whenever the wind changes

    That’s a seriously dysfunctional way for government to be run but yeah, it would probably a good idea for Michigan and California to redo the referendums in a year when there will be heavy turnout.

  • pocketnerd

    It wouldn’t even take a Republican victory in 2016’s presidential election; what are the odds that one of three people, each aged 60 or more, will die or retire in the next few years? And is the situation likely to be any better post-2016, even with a Democrat in the White House? If Congress then looks anything like Congress now, I think a second Justice Kennedy is about the best we could hope for.

    Thus Spake Zarascienceavenger, #14:

    Further, no GOP candidate was up against the kind of electoral inertia facing whoever is unfortunate enough to be the nominee in 2016. If you count up the electoral votes of all the states that went either R or D every single year in the last 20, the scoreboard reads D – 242, R -121, which is unprecedented. It also effectively means all the Dem has to do is hold serve and win Florida, or Ohio along with one other double digit state. The only way the Dems lose in 2016 is if some sort of major scandal breaks, or something else unusual happens.

    Don’t worry. The Democratic Party is expert at snatching defeat from the jaws of victory; I’m sure they’ll think of something.

  • http://ahcuah.wordpress.com/ ahcuah

    On the other hand, Scalia and Kennedy are 78 and Thomas is 66. Who knows what level of artery-clogging fats are coursing through their veins?

    You really cannot predict where an opening on the Supreme Court (or on which side) might occur.

  • hunter

    I think Waldman is being overly pessimistic. Of the eleven circuit courts, the question is moot in the 1st and 2nd, the 3rd, 4th, 7th, 9th, and 10th have ruled in favor, and decisions in the 5th, 6th, 8th and 11th will be forthcoming within the next year. Any case that is accepted by the Supreme Court will be heard at the latest in the 2015-2016 term. Any vacancies before then will be filled by an Obama nominee.

  • D. C. Sessions

    Any vacancies before then will be filled by an Obama nominee.

    Any vacancies before then will give Obama a chance to nominate a candidate. Which the Senate can then filibuster. Or, depending on the outcome next month, completely ignore, leaving the Court at 5-3 or 4-4.

  • jws1

    I love how folks just know how a SCOTUS nominee will rule. David Souter, anyone? People need to relax. This issue is all over but the crying and the lying about who stood where (I’ve noticed those who lost their asses in the civil rights era have been quite busy lying about their stance on the issue at the time).

  • pocketnerd

    Thus Spake Zarajws1, #25:

    People need to relax. This issue is all over but the crying and the lying about who stood where (I’ve noticed those who lost their asses in the civil rights era have been quite busy lying about their stance on the issue at the time).

    You’re wrong. Same sex marriage may be “all over but the shouting,” but there are plenty of right-wing interests eager to drag the endgame out as long as possible — there’s good political hay to be made, especially when courting a demographic already deeply invested in seeing itself as a persecuted minority fighting a desperate war for the fate of Real America™. FFS, civil rights for racial minorities was “all over but the shouting” 50 years ago, but the battle is still fought today — and the Republican Party is still leveraging it to political advantage.

  • Michael Heath

    jws1 writes:

    I love how folks just know how a SCOTUS nominee will rule.

    Nominees have been very predictable, Souter being a good example of a NE moderate/liberal Republican prior to the party becoming dominated by conservatives soon after his nomination; he was in the same vein as Justice Stevens.

    So people can predict with high confidence given the consistency of the justices since at least the rise of the Rehnquist court. There’s even been statistical studies done. The one of the Rehnquist court in Clarence Thomas’ first five years is a nice illustration.

    Yes we see outlier vote results; but that’s exactly what they are, outliers. And we can be confident that a GOP president who wins in 2016 will not be nominating anyone that’s not a true-red conservative; which was not yet the dominant ideology in the GOP when Souter was nominated, e.g., H.W. Bush was president and was a moderate having to reluctantly and sometimes demonstrably behave as a conservative.

  • Michael Heath

    In addition to the above, the dynamics on how justices have been nominated has changed dramatically since the Souter nomination, and probably largely due to the Souter nomination coupled to conservatives taking over the GOP completely.

    It used be more the task of the Senators from the sponsoring state to vet and promote their horse. Now there is most certainly an ideological purity test in the GOP, which a Souter would easily fail, as did Harriet Meiers when the lazy-ass W. nominated her. That same demand for ideological fealty is now a factor in Democratic party nominations as a reaction to the GOP’s commitment to ideological purity.

  • jws1

    Good points. But those outliers tend to be rather irritating, occurring in huge decisions like Roberts and ACA. A republican president would certainly like to nominate a true red conservative, but it seems to me that nominees tend to not leave a long paper trail indicating their thinking. So really everybody is guessing. Educated, informed guesses. But guesses still.

  • Childermass

    “Prop 8 was and amendment to the California State Constitution passed by referendum. I don’t think that the legislature can overturn it.”

    I explicitly mentioned referendums in my comment.

    Let me spell it out slowly:

    HAVE ANOTHER REFERENDUM.

    What is stopping this? Certainly it would be trivial to get enough petitions to get on to the ballot. Prop. 8 did not pass by a large margin and the public opinion has shifted considerably since Prop. 8 passed so equality will almost certainly win this time.

    And of course since Prop. 8 can’t be enforced because of court orders, the legislature is free to have its say. But that will change if the conservatives gain votes in the Supreme Court. If Prop. 8 is not purged that means SSM will be once again illegal in California.

  • whheydt

    Re: jws1 @ #25…

    Even better example: Earl Warren. He was the driving force behind the Japanese internment and Eisenhower nominated him…to his subsequent regret.

  • whheydt

    Re: Chldermass @ #30…

    (If somebody starts a petition drive to formally repeal Prop. 8, I’d sign it.)

    Changing SCOTUS wouldn’t change the situation in California. SCOTUS bucked the decision back down to the district court decision. To change it, there would have to be someone with standing to start all over, and courts will not generally re-open a case that has already been litigated to a conclusion. Barring earthshattering changes in California demographics, the Governor and AG are going to oppose reopening the issue.

  • anubisprime

    Childermass @ 30

    HAVE ANOTHER REFERENDUM.

    I think, although in no way is that certain, that you have answered the point yourself.

    Prop. 8 did not pass by a large margin and the public opinion has shifted considerably since Prop. 8 passed s

    o equality will almost certainly win this time.

    point

    A fact that will not be overlooked by the more drooling of the retards.

    They would fight tooth and claw to insure that no such referendum would see the light of day.

    They are aware it would be game over and probably for good if it did.

    They are content to wait until a rethug plants butt on Oval office executive chair and appoints a loaded and jeebus soaked patsy or several to do the judeo/xtian heavy lifting.

    They have a couple of years to wait maybe, but better that then losing the whole farm kit and kaboodle by allowing a rash and ultimately doomed referendum for their cause.

    Their position would be…’We already had a referendum and we won it just takes a sufficiently twisted retard or two elevated to the supreme court bench to restore righteousness and sooth their bigotry bone” so they will wait, and whine about the godlessness of California in the meantime, and the capricious nature of activist judges on the circuit circus who are supposed to be right wing!