All of a sudden, conservatives were never really against gay marriage to begin with. They just wanted to achieve it through the democratic process. “Many people will rejoice at this decision, and I begrudge none of their celebration,” wrote Chief Justice John Roberts in his dissent, implying that he thinks gay marriage is a delightful thing. On Fox News, The Weekly Standard’s Stephen Hayes endorsed gay marriage but called the Court’s decision “the wrong way to do the right thing.”
Forgive my cynicism, but I don’t buy it. First, the conservatives who say they want same-sex marriage but only through the democratic process don’t acknowledge just how devastating that principle would be to millions of LGBT Americans who want to marry the person they love. After all, if it’s wrong for the Supreme Court to require same-sex marriage, then it’s just as wrong for lower courts to do so. But of the 37 states that had legalized gay marriage on the eve of the Court’s decision, 26 had done so via lower courts.* Only 11 states had legalized it through the legislative process or by popular referendum. That means that, in Roberts and Hayes’ ideal world, gay and lesbian Americans in 39 states would still lack marriage rights. Thirty-one of those states, as Charles Lane noted on the Fox panel with Hayes, have passed constitutional amendments banning same-sex marriage. Undoing those amendments democratically, especially in states like Utah, Alabama, and Mississippi, would have taken a long time—Hayes himself estimated 15 to 20 years. If you’re fine telling millions of gay Americans to wait that long, you don’t really consider same-sex marriage that important.
Second, the principle that the Supreme Court should never remove controversial subjects from the democratic arena is not one conservatives adhere to very scrupulously. Perhaps it’s my forgetfulness, but I don’t remember many conservatives reacting to the Roberts Court’s decision to invalidate campaign-finance laws by declaring that, while they oppose such laws, they only want them repealed democratically. In fact, I’m unaware of any recent court decision whose policy implications conservatives supported but which they nonetheless opposed for democracy’s sake. That includes Bush v. Gore, when the Supreme Court told Florida to stop counting ballots and effectively chose America’s president in 2000.
Third, if we’re supposed to believe that the conservatives who opposed the Court’s decision really, really support same-sex marriage but just want to achieve it democratically, then it’s worth asking what exactly they have done to further the cause. Type “Weekly Standard” and “same-sex marriage” and you’re not exactly showered with paeans to idea. In fact, among the first 15 articles and blogs on the subject, I couldn’t find one supporting same-sex marriage. (Though third on the list was an article calling the gay marriage movement “more and more totalitarian.”)
And it’s not just his own magazine that Hayes has proved unable to convince. Not a single Republican presidential candidate supports same-sex marriage—not via the legislative process, via referendum, or in any other way. When conservatives believe in something passionately—think of their opposition to Obama’s nuclear deal with Iran—they’re pretty good at getting their perspective heard and at getting GOP politicians on board. But you have to strain awfully hard to hear the drumbeat of conservatives calling for same-sex marriage but only through the democratic process. In fact, it’s an argument you hear most when conservatives are looking for a way to make their opposition to pro-marriage equality court decisions more palatable. It’s a little like President Obama and other liberals who in 2008 called for sending more troops to Afghanistan while withdrawing them from Iraq. Were they really that excited about doubling down in Afghanistan? Not really. But it made their opposition to Iraq sound less extreme.
Obviously, there’s a distinction between believing something is good policy and believing the Constitution guarantees it. It’s just not a distinction the Beltway right has a record of caring very much about. And in opposing the greatest judicial affirmation of American equality in our time, they’ve chosen a very odd time to start.
