Here Come the Culture Wars: Court Hears Cases on Affirmative Action and Gay Marriage

Beth Reinhard

The Supreme Court is weighing major decisions on gay marriage and race that could roil the 2014 election beyond the debates in Washington over the federal budget, immigration and gun control.

Among the measures dominating the docket: the constitutionality of the Defense of Marriage Act (DOMA) federal same-sex marriage ban, California’s Proposition 8 ballot initiative outlawing gay marriage, the affirmative action policy at the University of Texas, and a section of the Voting Rights Act of 1965 that requires some states and communities to clear voting changes with the federal government. The high-stakes decisions, expected in June, may force candidates in competitive races to take sides on divisive social issues. Religious conservatives and African-American voters are ready to mobilize if same-sex marriage bans or racial equality laws are overturned, potentially reshaping the mid-term electorate.

“With everything coming down the pike, I think 2014 is going to be a culture election in a way we haven’t seen in a few years,” said Lanae Erickson Hatalsky, director of social policy and politics at Third Way, a left-of-center think tank. “With racial politics and gay rights swirling around at the same time, it will be interesting how Republicans and Democrats respond.”

With fewer vulnerable Republicans on the ballot in 2014, the candidates who could be tripped up the most are the six red-state Democratic senators up for re-election: Kay Hagan in North Carolina, Mary Landrieu in Louisiana, Max Baucus in Montana, Mark Begich of Alaska, Mark Pryor of Arkansas and Tim Johnson in South Dakota. Re-election challengers may try to use social issues to lure these senators out of an economy-focused comfort zone that allows them to retain Democratic support and seek crossover votes from independents and moderate Republicans. 

In one example of how a Supreme Court decision could permeate the national debate, Hatalsky noted that the word “spouse” appears 1,138 times in federal laws and regulations. Many of those references would end up before Congress if DOMA is overturned, giving opponents of same-sex marriage a last-ditch chance to raise religious objections -- similar to those raised by opponents of the administration’s new rules on insurance coverage of birth control.  “June is just the beginning,” Hatalsky said. “There will be so many opportunities after that for Republicans to try to limit the application of DOMA.”

The Proposition 8 decision could be narrower and apply only to California. But if the Obama administration’s argument wins the day, eight states that currently allow civil unions would have to sanction same-sex marriage, bringing the total to 17 states with marriage equality.

“If the court can overturn a popular vote of the people, I think you’ll find a lot of outrage that would motivate people to go the polls in 2014,” said Tom McClusky, vice president for government affairs at the Family Research Council. “It will be very hard for James Carville or Karl Rove to say the election is just about the economy.”

The public's concerns about jobs and national security have mostly overshadowed social issues in recent elections. Support for gun control played a role in Democratic defeats in 1994, after President Clinton signed the assault weapons ban, and in 2000, when Vice President Al Gore ran for president. In 2006, the inflammatory debate over immigration reform helped Democrats broaden their appeal to Hispanic voters and take back Congress. Religious conservatives came out in droves in 2004, when gay marriage bans were on the ballot in 11 states. The state where they made the biggest difference was Ohio, which proved pivotal to Bush’s re-election. The gay marriage ban won with 61 percent of the vote, while Bush barely eked out a victory.

Since that election, Family Research Council’s nationwide e-mail list has grown from about 400,000 people to nearly 2 million, McClusky said. “We’re able to reach people much quicker and mobilize much quicker,” he said. “As people see the building blocks of our society crumbling, our organization has grown.”

Democrats are skeptical of a surge in voting by social conservatives. A majority of Americans said they supported gay marriage in a Gallup poll last year. Dozens of prominent Republicans signed a legal brief submitted to the Supreme Court in support of same-sex couples in the DOMA case. “Attitudes toward gay marriage are changing faster than any other issue in the history of polling, so I think what the Supreme Court does will be less consequential,” said Democratic pollster Mark Mellman.

Turnout in mid-term elections tends to be older and less diverse than the presidential electorate. Blacks made up 13 percent of the electorate in 2008 and 2012, when Obama was on the ballot, but only 11 percent in 2010.

Civil rights groups were worried about minority turnout in 2012 after a slew of states passed laws requiring voters to show photo IDs. Courts blocked ID laws in Pennsylvania, Texas, Wisconsin and South Carolina, but the challenge to the Voting Rights Act is reviving concerns about minority disenfranchisement. The NAACP estimates that 5 million people who voted in 2012 would have been have been denied that right if not for the Voting Rights Act.

“Many Americans were outraged when they looked the voter ID laws and restrictions on early voting in 2012, which created an air of righteous indignation because they appeared to be similar to what was used in 1960s to prevent minorities from turning out to vote,” said Hilary O. Shelton, director of the Washington bureau of the NAACP. “If these obstacles are in place in 2014, it could have a major impact in stirring people to come out to the polls. If people think their rights are being threatened, they will be more likely to pay attention, even if the president is not on the ballot.”

Over the next few months, Supreme Court watchers will parse the courtroom debates for signs of which way these landmark cases on gay marriage and race will go. Politically, the aftermath of the decisions will be just as interesting.