Republicans won by losing.
With the Supreme Court’s landmark decision on Friday to legalize same-sex marriage across the country, the party that a decade ago hung its strategy for winning the White House on opposition to gay marriage has not only gained a new enemy and a new front in the ongoing culture war, but has also been handed a reprieve.
Republicans’ response to Friday’s ruling showcased a party at odds with itself and largely at odds with a country that has come to swiftly accept gay marriage even as political leaders of both parties lagged behind public opinion.
But it also provides both GOP camps a helpful political path: Republicans who strongly oppose the court’s decision can and will fight; Republicans who see this issue as too divisive can simply point to the Supreme Court decision as settled law.
As clerks in Texas, Arkansas, Kentucky and Tennessee moved to issue marriage licenses, GOP leaders put out conflicting statements on a hot-button issue that used to unite them.
The divide is an early sign that same-sex marriage could emerge as one of the brightest fault-lines of the GOP primary battle.
For moderate Republicans, the court’s 5-4 ruling was a lifeline that effectively ended a fight that they would rather not have, given where the country is.
Polls show that nearly three quarters of Americans believe that same-sex couples have a constitutional right to marry – including almost 60 percent of Republicans under 50. And another poll, cited by Republican consultant Margaret Hoover on CNN’s “Legal View,” suggests that 53 percent of GOP primary voters in Iowa, South Carolina and Nevada, who might themselves oppose gay marriage, think that it’s time to move on given the Supreme Court’s decision.
In Ohio, Gov. John Kasich’s administration signaled that the battle was now over since the Supreme Court found in favor of lead plaintiff Jim Obergerfell, who had sued Ohio over its same-sex marriage ban.
The swing state’s ban was until now protected by an Ohio constitutional amendment passed in 2004 – the appeal of the traditional marriage referendum that year has been credited with bringing out Republicans who helped also hand a reelection victory to President George W. Bush.
“The governor has always believed in the sanctity of marriage between a man and a woman, but our nation’s highest court has spoken and we must respect its decision,” said Rob Nichols, a spokesman for Kasich, who is expected to soon enter the 2016 race for president.
But for more conservative Republicans, the Supreme Court gift-wrapped a galvanizing wedge issue that they will attempt to use to peel off evangelical and other values voters.
“The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do – redefine marriage,” said Mike Huckabee in a statement released shortly after the historic ruling.
“I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” said Huckabee, a former governor of Arkansas seeking this year’s GOP presidential nomination. “We must resist and reject judicial tyranny, not retreat.”
Huckabee, who won the Iowa caucuses in 2008 as well as a number of southern contests, will likely be among the most vocal opponents of same-sex marriage. And Christian conservative voters in states like Iowa and South Carolina will likely look for a stark dividing line, both rhetorically and legislatively, between the cadre of conservative candidates who are leading with their faith.
That group now includes Louisiana Gov. Bobby Jindal, former Pennsylvania Sen. Rick Santorum and Texas Sen. Ted Cruz.
But in the coming days, that list is likely to grow, with presumptive candidate Scott Walker, the Wisconsin governor, staking out a very specific – and familiar – approach.
“As a result of this decision, the only alternative left for the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage,” he said in a statement.
Yet South Carolina Sen. Lindsey Graham, a Republican candidate running on his national security credentials, dismissed the prospect of a legislative fix as wishful thinking.
“Given the quickly changing tide of public opinion on this issue, I do not believe that an attempt to amend the U.S. Constitution could possibly gain the support of three-fourths of the states or a supermajority in the U.S. Congress,” Graham said in a statement. “Rather than pursing a divisive effort that would be doomed to fail, I am committing myself to ensuring the protection of religious liberties of all Americans.”
In an op-ed for TIME, Sen. Rand Paul suggested the government should get out of the marriage business altogether.
“The government should not prevent people from making contracts but that does not mean that the government must confer a special imprimatur upon a new definition of marriage,” he wrote.
Still, some conservatives see useful historical parallels that could serve as a template for efforts to roll back same-sex marriage.
“When the Supreme Court handed down the Dred Scott decision, it didn’t end the debate about slavery, but only intensified it,” said Bob Vander Plaats of The Family Leader, an Iowa-based Christian conservative group. “Roe v. Wade didn’t end the debate over abortion, for we’re still working through it today. Likewise, Obergefell v. Hodges doesn’t end the debate, but only stirs it.”
Yet chipping away at same-sex marriage, which is simply a matter of a clerk issuing a license, is much harder than making access to abortion more difficult. And it took an actual war to settle the slavery argument.
Now, the contours and the language of the same-sex marriage debate will largely shift to religious freedom laws, the primacy of state’s rights and the need for Supreme Court picks that are sympathetic to the conservative cause.
In his statement, Florida Sen. Marco Rubio seemed to ding the Republican-appointed justices who sided with their liberal colleagues not only on gay marriage but also Obamacare in a decision handed down Thursday.
The move could be a swipe at fellow Floridian presidential contender Jeb Bush, the state’s former governor, whose brother appointed Chief Justice John Roberts. Though Roberts wrote a dissent in the marriage case, he sided with President Barack Obama on the health care law. (Jeb pushed his brother hard for Roberts, Donald Trump tweeted.)
“While I disagree with this decision, we live in a republic and must abide by the law,” Rubio said in a statement. “As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.”
The state’s rights argument is a familiar one, particularly resonant in the South, but it can be alienating for African-Americans, a pool of voters that Republicans say they want to court.
As for religious freedom laws, even that fight will be easier to wage rhetorically than legislatively. While some 70 percent of Republicans believe wedding-related businesses have a right to refuse service to same-sex couples, business leaders even in red states such as Georgia and Louisiana have balked at such laws.
Jindal, however, showed the fight isn’t over. He tried to override his state legislature by signing an executive order protecting religious freedom in May. And just a few hours after Supreme Court Justice Anthony Kennedy read the pro-gay marriage decision he penned, Jindal made his pitch.
“The government should not force those who have sincerely held religious beliefs about marriage to participate in these ceremonies,” Jindal wrote in an email letter to supporters. “I will never stop fighting for religious liberty. Will you join me?”
Regardless of the political line of attack on the same-sex marriage issue, Log Cabin Republicans National Executive Director Gregory T. Angelo said he has been privately telling GOP presidential candidates to discuss same-sex marriage respectfully. The group represents LGBT Republicans.
Indeed, the word “respect” showed up in a number of statements issued by the candidates after the decision Friday.
On religious liberty, Angelo said there is still work to do.
“Religious liberty and marriage equality is not a zero-sum game,” he said. “I hope that good actors on both sides are able to work out a solution to a challenge that faces all of us on the aftermath of this decision.”