The archenemy of the gay marriage movement moved among them, and they didn’t seem to notice. Brian Brown, the affable president of the National Organization for Marriage, walked in front of the Supreme Court looking for his next interview. He glanced at one of the celebrants’ signs, “Time for the Sexually Hung-Up Supremes to Come Out of Their Closets,” and winced a little. He slipped through a crowd of gay men’s chorus members in red shirts taking their pictures with Barney Frank.
“You’re a hero!”
Brown kept plowing ahead, looking for the interview stand-up spot. He’d spent the past 4½ years leading a cause—“traditional marriage”—that the media considers as spent and musty as candle power. The media expected Wednesday to finish off that cause and reported on the death of the Defense of Marriage Act and California’s Proposition 8 in historical where-were-you-when terms. But Brown wasn’t thinking about defeat.
“They’re claiming a little bit of a victory,” said Brown, referring to the pro-gay marriage litigants. “I think they’re both horrible decisions, but they didn’t do what Ted Olson and David Boies wanted them to do, which was a Roe v. Wade for marriage. We’re far from that. Now we’re going back to the states.” Those states included California. “If the Ninth Circuit court is vacated, you have a decision that only applied to two couples. There’s going to be a petition for rehearing.”
At that moment, California Attorney General Kamala Harris was promising that “the wedding bells will ring” as soon as the circuit court lifts its stay on gay marriages. Rep. Mark Takano, the first nonwhite openly gay member of Congress, was on MSNBC gushing about gay weddings starting again “today.”
But traditional marriage advocates aren’t wrong about the delays to come. Legalizing gay marriage in 37 states will require a combination of voter referenda, successful lawsuits, legislation, and repeal of fresh state constitutional amendments that redefined marriage. It’ll take a while.
That’s not all bad for liberals. A “Roe for gay marriage” was the dream scenario, sure, but it would have given conservatives yet more proof that runaway courts were defiling the Will of the People. (You could practically hear them pining for that argument in a sad Wednesday “press conference,” where Republican members of the House defended Prop 8 as the wise judgment of voters, then split without answering any follow-up questions.) Wednesday’s decisions set up years of gay marriage fights in states such as Oregon and Michigan and New Jersey, where the issue’s a stone-cold winner. “Let’s put marriage equality on the ballot,” tweeted an Arizona Democratic legislator, who figured it would win even in his Republican state.
But is the momentum spreading to redder states? The pro-gay marriage flood that started after the November election finally reached the shore this month. Polls, like the past few from CBS News, suggest that pro-gay marriage enthusiasm peaked around 51 percent and has stayed there. And that’s nationally, averaging in the support from liberal megastates (New York) that have settled the issue.
Ohio Sen. Rob Portman’s announcement that he supported gay marriage was supposed to free other conservatives to reveal that they agreed with him. Only two major ones, Alaska’s Lisa Murkowski and Illinois’ Mark Kirk, have done so. Former Rep. Bob Barr, the DOMA author who famously recanted, is now a congressional candidate again. He responded to the ruling by promising voters that “I personally believe marriage should be defined as between one man and one woman and, if it were on the ballot in Georgia, I'd vote that way.” And just four weeks ago, Kirk’s Illinois, currently run by a Democratic governor and a veto-proof Democratic legislature, belly-flopped on a gay marriage bill when a coalition of black Democrats and ethnic Catholic groups stuck the shiv in.
Maybe Wednesday’s decisions put some gas back in Democrats’ engines. But Washington looks like legislative stalemate. Conservatives can stop Democrats from passing the Respect for Marriage Act, which would repeal the husk of DOMA that the court let live. But the Federal Marriage Amendment they long for would need supermajority votes in both the House and Senate, and they couldn’t even get that during the Bush era.
“I’ve already requested the language,” said Kansas Republican Rep. Tim Huelskamp. “We’ll hopefully gather co-sponsors, and hopefully this week we’ll see if [passing it] is possible. This is a winning issue. All you have to do is look at what happened to California in 2008. John McCain got creamed, and at the same time, the folks that wouldn’t vote for a Republican—particularly minority communities—came out to support traditional marriage. It’s probably the most attractive feature of the Republican Party, our support for traditional marriage and other issues.”
Conservatives can enforce that orthodoxy for now. In 2012, most credible candidates for the GOP nomination competed in Iowa and signed a series of marriage pledges. The pledges of both the National Organization for Marriage and the Iowa Family Leader committed candidates to the Federal Marriage Amendment. Mitt Romney skipped the Family Leader’s pledge, and its sponsor went on to endorse Rick Santorum, who won the state and—to the mystification of non-Iowan nonconservatives—returned as a national figure with a voice inside the party.
“This decision today elevates the marriage debate,” said Bob Vander Plaats, president and CEO of the Family Leader. Conservatives will get to see where the potential leaders of the party stand when they come to Iowa for an Aug. 10 Family Leadership Summit. “Some will venture into this and say it’s a states’ rights issue. Some will say we need a marriage amendment,” Vander Plaats said. He didn’t say which stance would become the litmus test, but he offered some powerful hints. “We view marriage much like abortion, much like slavery. If it’s illegal in one state, it should be illegal everywhere, transcending boundaries.”
That’s the debate conservatives need to prep for. The marriage movement wasn’t ended by the court’s marriage rulings. “Today gave us a mixed bag,” said Vander Plaats, “but it’s a mixed bag we can use.”
Read more from Slate’s coverage of gay marriage.