What will Republicans say about marriage equality should the Supreme Court, as many observers expect, hold that state bans on same-sex marriage are unconstitutional?
If the Supreme Court strikes down the bans, it might provide an escape hatch for Republicans, as suggested in today’s Times. The Court has settled the question, let’s move on to to more pressing issues, in other words. But for many religious conservatives, there are no more pressing issues (apart from abortion). Would the marriage cases provoke, like Roe v. Wade, a multi-decade battle to undermine the right?
If the marriage cases do act as such a provocation, it wouldn’t be like the one triggered by Roe. The constitutional right enshrined in Roe has long been seen by conservatives as tenuous, and they have coupled an argument about a dubious right with unrelenting arguments over the science of pain, the origins of life, and the constitutional rights of fertilized eggs, in an attempt to bolster opponents of abortion and sway, or at least raise doubts among, the fence-sitters.
By contrast, because acceptance of marriage equality has rapidly evolved in a direction that is unlikely to waver, it would be harder for activists to chip away at acceptance of marriage equality like they have with abortion. The trajectory of public acceptance of marriage equality is not one amenable to erosion. And while states have placed limits on abortion access, the same cannot be done with marriage.
There’s a better analogy than Roe for how religious conservatives are likely to see a marriage equality victory at the high court: Engel v. Vitale, the 1962 Supreme Court case which held compulsory school prayer unconstitutional.
Although Roe gets far more attention because of the potency of the issue surrounding women’s rights and health, school prayer has, for about a decade longer, loomed for Christian conservatives as singular evidence of an “activist” judiciary that is undermining American “Judeo-Christian” values with secularization.
These same impulses have been driving the reaction to the pace of marriage equality in the states. Attempts to legislate “religious freedom” as a legal exemption for businesses or governments from having to serve LGBT people; lawsuits on behalf of or in defense of caterers, bakers, and photographers; efforts to “change the culture” rather than legal precedent; and the outcry over government overreach in the firing of Atlanta fire chief Kelvin Cochran (with more such outcries likely to come) are all examples of deploying religious arguments — that is, arguments for religious privileges or practices being exempt from the public and legal acceptance of LGBT equality.
It’s worth remembering that the religious freedom argument was an intense motivator for white evangelicals in the 2014 midterms. That won’t be lost on Republicans, who will need to devise a way to motivate some voters without alienating others.
