Republicans are reeling from a week that produced two Supreme Court rulings which are at odds with the party’s platform. On Thursday, the Supreme Court voted 6-3 to uphold a major component of the Affordable Care Act, ruling in King Vs.Burwell that all states are eligible to receive subsidies from the federal exchange even those states which did not establish their own state exchange. While the party was still smarting from the Obamacare victory, the Supreme Court cast a huge rainbow across America with a 5-4 vote legalizing same sex marriage. Where does the party go from here? Do they focus on fighting the decisions, accusing the Supreme Court of judicial activism? Or do they find a middle ground?
So far the responses have been mixed. Wisconsin Governor Scott Walker, who is one of the leading contenders for the 2016 GOP ticket despite not having formally announced his candidacy, is calling for a constitutional amendment to the gay marriage ruling. Other top five candidates including Jeb Bush and Marco Rubio have changed the conversation to be more about religious liberty. Bush writes “Guided by my faith, I believe in traditional marriage. I believe the Supreme Court should have allowed the states to make this decision. I also believe that we should love our neighbor and respect others, including those making lifetime commitments. In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.”
We are now in society where 55% of the American population supports same sex marriage, a far cry from 1996 when only 27% supported the validity of same sex unions. In a bizarre way, the same sex marriage ruling is a blessing in disguise because it takes the gay marriage platform off of the table. The Democrats can no longer include the legalization of gay marriage in their campaign platforms. And Republicans no longer need to craft platforms which oppose gay marriage to appease their base. The campaign conversation can focus on the economy, national security and other key issues that voters care about.
While the question of legalizing gay marriage may be off the table as a campaign platform, the land mark decision in Obergefell v. Hodges has many potential ramifications which the GOP needs to be prepared to address. For instance, Chief Justice Roberts who, along with Justices Alito, Scalia and Thomas dissented, made the comment that the ruling opened the door to polygamy. “Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” Roberts wrote. “Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.” The GOP needs to be prepared to answer these “slippery slope” questions with practical responses while avoiding the more ludicrous framing of argument such as “Who is to stop individuals from marrying animals? After all, you can love an animal.”
More likely there will be other complicated dance steps for the GOP regarding situations which involve the Religious Freedom Restoration Act. For instance, the issue of catering halls and cake vendors not wanting to service a gay marriage is not going away. In fact, it is only going to grow now that gay marriage has been legalized. Furthermore, even though the new law does not require churches or synagogues to marry same sex couples, the GOP will still be asked to weigh in on the question of gay marriage in the instances where the organizations refuse to marry or provide other services for same sex couples. The GOP, particularly the next presidential candidates, are going to be challenged to address these questions without being painted as being “anti-gay”. They are going to have to figure out a way to respond where they come across as champions of religious freedom who support the equal rights of all individuals, without coming across as judgemental of lifestyle choices which conflict with their religious beliefs. This will be a delicate dance, but not an impossible one. The GOP candidates need to prove to the nation that they are up for this challenge so they can take back the White House in 2016.
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