It’s generally assumed that Republican opponents of marriage equality will cry mostly crocodile tears over the Supreme Court’s decision not to disturb (at this point, anyway) U.S. Circuit Court holdings that same-sex marriage bans are unconstitutional. After all, it takes off the political table an issue where most Republicans are required by their alliance with the Christian Right to take a position they know is a long-term (and increasingly, a short-term) loser.
Yes, Ted Cruz predictably howled at the moon about the decision, and there will be temptations for 2016 presidential candidates to exploit the particular obsession with same-sex marriage among Iowa’s powerful Christian conservatives. But with GOP elites already beginning their quadrennial pleas for Republicans to downplay “divisive social issues” going into a winnable presidential cycle, this is one that could easily get placed on a back burner.
But “out of sight” does not mean out of mind when it comes to the Christian Right activists who remain the most important foot soldiers of the party. It’s unlikely many leading Republicans — especially those running for president — will disrespect them by actually flip-flopping on marriage equality. Indeed, most will blow “dog whistles” indicating their sympathy to the conservative Christian cause — signals that activists hear while others miss or misunderstand. And fortunately for Republicans, two already exist that can encompass frustration with the direction of the same-sex marriage debate.
One is opposition to that old conservative bugaboo, “judicial activism.” Popularized years ago during the fight against school desegregation, and then ramped up during the holy war that followed the Supreme Court’s school prayer ban, attacks on appointed judges as having usurped democratic prerogatives and/or upset ancient norms have become especially identified with the anti-abortion movement. Now it can apply to the marriage issue as well, as it already does in the crucible of Iowa, where state judges legalized same-sex marriage back in 2009.
The best thing about “judicial activism” is that it can imply an effective if vague promise of future action, especially for presidential candidates who can promise to appoint federal judges that “believe in strict construction of the Constitution,” a secondary dog whistle meaning no acceptance of the right to privacy central to Roe v. Wade and no equal protection clause applied to sexual orientation as used in marriage equality decisions.
Christian conservatives, of course, have grown tired of these promises being ignored or betrayed by Republican pols, so they don’t have their original power. It’s no wonder a pol who is also a Southern Baptist minister, Mike Huckabee, reacted to the Supreme Court’s action this week by hinting at active defiance of judicial authority. That’s the opposite of a dog whistle; it’s a loud insurrectionary shout that will scare GOP donors and swing voters alike. So it will be discouraged.
A second dog whistle is already associated with resistance to marriage equality as well as antichoice activism: “religious liberty.” It’s even more effective than opposing “judicial activism,” because it borrows the aura of an almost universally valued American principle. And it’s less aggressively theocratic, as well, insofar as its proponents do not (at least in this context) propose to ban same-sex marriage (or to ban abortions or contraceptives), but simply to create a zone in which gay marriages don’t have to be recognized (and abortions and contraceptives provided or subsidized).
So far, claims that same-sex marriages will threaten “religious liberty” have mostly emerged from conservative Christian quadrants of the wedding industry, and proponents of giving them broad exemptions from laws they don’t like haven’t made a lot of progress (though less formally, opposing gay rights on religious grounds has been a boon for businesses like Chick-Fil-A and for careers like Duck Dynasty’s Phil Robertson). But as the “religious liberty” movement continues to develop, you could see it morph into the theoretical foundation for a parallel society in which the painful diversity of contemporary life, and its disturbing clatter of demands for “equality” and “non-discrimination” and “rights” (other than religious rights and the Right To Life, of course) is simply excluded, along with “government schools” and secular news and entertainment.
Presumably the Republican Party could thrive as the exclusive political champion of this parallel society — the One Party for the One-Party-State of conservative conformity operating at the margins of the heathenish remainder of the country. There are sunbelt suburbs, in fact, where this is pretty much already a reality. But there’s danger in too much reliance on liberating conservatives from “judicial activism” via an ever-expanding zone of “religious liberty:” opponents of same-sex marriage and abortion/contraception could become complacent and lose the spiritual muscle-tone provided by fighting to restore godly norms for all Americans. There’s a long history of conservative evangelicals retreating into apolitical and interior lives; that’s where they largely existed for many decades prior to the 1970s.
Republicans want religious conservatives mobilized and angry, but not too demanding or overtly threatening. After all, there are tax rates to be lowered, entitlements to be “reformed,” regulations to be abolished, and profits to be made.
Ed Kilgore is the principal blogger for Washington Monthly’s Political Animal blog, Managing Editor of The Democratic Strategist, and a Senior Fellow at the Progressive Policy Institute. Earlier he worked for three governors and a U.S. Senator. He can be followed on Twitter at @ed_kilgore.