Karl Rove (shown on right) may have rambled off the reservation as far as some leaders of the social conservatives in the Grand Old Party are concerned. Rove, the former White House political director often described as "Bush's brain" during the administration of George W. Bush, has said that he can imagine the Republican nominee in the next presidential campaign supporting gay marriage. The Republican political strategist offered that observation in response to a hypothetical question from host George Stephanopoulos as a member of the panel on ABC's This Week Sunday. It did not take long for the comment, on which Rove did not elaborate, to elicit a sharp response from former Arkansas Governor and 2008 GOP presidential contender Mike Huckabee, a Baptist minister and prominent leader of evangelical conservatives.
"They might," Huckabee said when asked in an interview on Newsmax TV if the party might nominate a standard bearer who supports same-sex marriage. "And if they do, they're going to lose a large part of their base because evangelicals will take a walk." Huckabee insisted it had nothing to do with bigotry against people of a different sexual orientation, an attitude frequently characterized as "homophobia."
"And it's not because there's an anti-homosexual mood, and nobody's homophobic that I know of," Huckabee said, "but many of us, and I consider myself included, base our standards not on the latest Washington Post poll, but on an objective standard, not a subjective standard."
The issue was raised on a number of the Sunday talk shows in anticipation of two cases to be argued this week in the U.S. Supreme Court. One is a challenge to the federal Defense of Marriage Act, passed by Congress and signed into law by President Bill Clinton in 1996. The law, passed in reaction to movements toward the legalization of same-sex marriage in some states, leaves state laws alone and defines marriage in federal law as exclusively a man-woman partnership. In states that have since broadened the legal definition of marriage to include same-sex couples, the federal law has an impact on how federal benefits, such as Social Security, and federal inheritance taxes are apportioned for surviving spouses in a same-sex marriage. Issues of equality and the division of powers between states and the federal government are at stake.
The other challenge the Court will hear this week is a suit calling for the overturning of California's "Proposition 8." Adopted by referendum in 2008, the amendment to the state's constitution establishes a man-woman relationship as the only union to be legally recognized as marriage in the Golden State. The suit claims the provision violates the requirement of the 14th Amendment to the U.S. Constitution that forbids any state to deny any person "equal protection of the laws." The amendment, adopted in 1868, was one of the post-Civil War additions to the Constitution aimed at protecting the lives and liberties of recently freed slaves and other members of the Negro race. It was preceded by the 13th Amendment outlawing involuntary servitude and followed by the 15th Amendment establishing the right to vote regardless of race.
As if the battles over competing definitions of marriage were not complicated enough, the arguments before the court this week will likely spark as well another chapter in the longstanding controversy over the proper interpretation of the Constitution. What is generally described as the conservative bloc — led by Chief Justice John Roberts, and including Justices Antonin Scalia, Clarence Thomas, and Samuel Alito — is likely to hold to a traditional interpretation, whereby the requirements of a constitutional provision are to be observed and enforced according to what Scalia has repeatedly described as an original understanding of the text at the time the provision was adopted. No one has yet argued that the Framers who wrote or the states that ratified the 14th Amendment in 1868 had intended to establish a right of same-sex marriage.
The court's liberals — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — have been more inclined to take the "living document" approach to constitutional interpretation, holding that the requirements of the Constitution must be understood differently in different times and that issues have come to the fore in our time that require a different application of the 14th Amendment than what was intended in the last third of the 19th century.
Justice Anthony Kennedy often provides the "swing vote," more difficult to predict. He wrote the opinion in the 1996 case Romer v. Evans, in which the Court struck down a Colorado constitutional amendment forbidding the state or any of its subdivisions from enacting any law or ordinance protecting homosexuals or lesbians as a class from discrimination. Writing the 6-3 decision of the Court, Kennedy rejected Colorado's claim that the measure merely forbade the granting of special rights to the homosexual groups.
"To the contrary," Kennedy wrote, "the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint."
Advocates for what are commonly called "gay and lesbian rights" have found stiff resistance within the Republican Party and broader acceptance generally among Democrats. When campaigning for the U.S. Senate in Massachusetts in 1994, Republican candidate Mitt Romney said in a letter to the state's Log Cabin Republicans, a homosexual group, that he would be more effective in fighting for "gay rights" than his Democratic opponent, Sen. Ted Kennedy. The letter became something of a liability for Romney years later when, as a presidential candidate, he was courting votes from the party's base of social conservatives.
Romney stressed his opposition to same-sex marriage, however, and until last year even liberal favorites such as Barack Obama and Hillary Clinton said they opposed gay marriage, while endorsing civil unions for same-sex couples. On the Republican side, former Vice President Dick Cheney, who has an openly lesbian daughter, endorsed same-sex marriage in 2009. Last week, Ohio Sen. Rob Portman, who has an openly homosexual son, came out in favor of it, as well.
"I have great sympathy and extraordinary admiration for Sen. Portman," Huckabee said in his Newsmax interview. "I consider him a friend and I value his work in the Senate and think he's a great person. The mistake is that we sometimes base our public policy decisions on how we feel, how we think, maybe even some personal experiences, and we don't regard a lot of these issues from the standpoint of an objective standard."
Politicians, said Huckabee, "have an obligation to be thermostats, not just thermometers. They're not simply to reflect the temperature of the room, or the culture, as it were. They're to set the standards for law, for what's right, for what's wrong, understanding that not everybody's going to agree with it. On this issue, I recognize the culture is moving away from the traditional standard, but it's almost like saying, well, we have a basketball team and nobody on the team can hit the goal that's 10 feet off the floor so we're going to lower the goal down to six feet and that way everybody can slam dunk the ball."
Tony Perkins of the conservative Family Research Council argued on the CBS Face the Nation show Sunday that polls showing public opinion embracing the concept of same-sex marriage are irrelevant:
The polls that really matter are the polls that are taken when the people actually vote on this. When people have voted as late as 10 months ago, 30 states have put the natural definition of marriage into their state constitution on average by a vote of 67 percent.
Yet recent polls have shown gay marriage gaining acceptance even among Republicans. The polls, Perkins said, show results based on "what you ask for. There's later polls out by Reuters this week, the Pew Research that show not only is it evenly split in this nation, but when you look at Republicans, 63 percent of Republicans say it would be harmful to the family to redefine marriage." If in fact, public opinion is moving toward acceptance of what proponents call "marriage equality," there is no need for the court to intervene, Perkins said.
"If it's inevitable, as the media would have us believe it is, then there's no reason for the Court to interject itself in this," he pointed out. "But the reality is, it's not inevitable."