If you believe the two most conservative justices, then the Supreme Court can nearly be counted on to declare that same-sex couples have a constitutional right to get married. And if their expectation proves true, that decision may well go down as the most significant nationwide expansion of civil rights where Congress was on the sidelines.
One of the most rapid evolutions in the history of American moral values is potentially just 20 weeks from its breakthrough moment. The court is on course to decide before adjourning in June whether states may ban same-sex unions — astonishingly, fewer than five years after the very first national poll to find a majority supporting a universal right to marry. In the intervening years, the congressional approach to gay rights in general, and wedding equality in particular, has more and more often been to steer clear of the topic. When lawmakers have joined the debate, it’s been with a balky inconsistency.
Oral arguments haven’t yet been scheduled. But the court’s decision Monday permitting same-sex marriages to proceed in Alabama, where there’s a particularly tangled and heated dispute, may have provided a big hint about the its thinking in the landmark nationwide case. Justice Clarence Thomas, in a dissent signed by Justice Antonin Scalia, said as much.
The appropriate course for the court would have been “to preserve the status quo pending the court’s resolution of a constitutional question,” Thomas wrote. “This acquiescence,” he added, “may well be seen as a signal of the court’s intended resolution of that question.”
If the Supreme Court says gay and lesbian people nationwide must be permitted to marry, there is almost nothing the conservative Republican majorities in the House and Senate could do to try to countermand that decision. And that’s assuming the GOP leadership would seek to try, which may no longer be the case given how quickly the politics of the issue have shifted and how widely gay marriage has become the status quo. (Just since October, the number of states where it is permitted has grown from 19 plus Washington, D.C., to 37, which accounts for about 70 percent of the U.S. population.)
Those numbers suggest a constitutional amendment, the most powerful legislative tool for trumping the judicial branch, would be a non-starter. Changes to the Constitution must be endorsed by 38 states — and only after the language has been approved by two-thirds of both the House and Senate.
Congress last voted on a constitutional amendment to ban gay marriage, by defining marriage as “the union of a man and a woman,” in 2006, when public sentiment was fundamentally different than today. Even then, the majority in the House was 46 short of the supermajority necessary, and in the Senate only 49 voted “yes” on the dispositive test ballot, in which 60 votes were needed to push the measure to a final vote.
A slight majority of the lawmakers from that time who are still serving in the 114th Congress were opponents of amending the Constitution: 98 of today’s congressional Democrats and seven of today’s Republicans voted “no,” while 92 Republicans and five Democrats voted “yes.”
Assuming the amendment idea is not revived, those roll calls from nine years ago may stand as the final congressional word that has something close to apples-to-apples comparability to the question now before the Supreme Court.
If the justices decide getting married is a fundamental right and may not be denied to same-sex couples, a major question about the subsequent reaction in Congress is this: Will the leadership of the Republican majorities continue to be more acquiescent than activist when it comes to following the court’s lead? Predicting the answer will require careful gauging of the evolving cultural attitudes of the GOP rank and file — and at this point, their collective views appear to remain reliably far more conservative than those of a majority of their constituents (those outside the party’s base).
Only five of today’s GOP senators and four current House Republicans were on the prevailing side at the end of 2010, when Congress repealed the “don’t ask, don’t tell” law, which prevented openly gay people from serving in the military. Two years later, Speaker John A. Boehner got a burst of support from his troops by hiring attorneys to represent the House’s view the Supreme Court should uphold the 1996 Defense of Marriage Act. (The court struck much of it down anyway in its most important ruling to date in favor of gay rights.)
By the last Congress, Republican support for the bellwether gay civil rights bill had lurched upward — but only a bit, and far less than would be required to put any such legislation on the party’s agenda for 2015 or 2016. Ten Republicans voted “yes” when the Senate passed a measure in November 2013 to outlaw workplace discrimination against gay, lesbian, bisexual and transgender employees.
Each of the 10 remain, but there’s no hint any of their dozen freshmen GOP colleagues are interested in joining their side. And membership in this year’s House includes only four Republicans who co-sponsored the companion job bias bill from two years ago, which the House never took up. (The bill, known as the Employment Non-Discrimination Act, has not been reintroduced this year on either side of the Capitol.)
In the current climate, the better bet is that congressional Republicans remain almost entirely silent on gay rights this winter and spring — with many of them hoping the Supreme Court acts historically, and thereby makes the Hill’s views on the topic altogether irrelevant for a while.
Related: Sessions Blasts 'Activist Judiciary' on Gay Marriage in Alabama Gay Civil Rights Debate Moves to Still-Recalcitrant House After a Surge, Is There Even One More Senate Vote for Gay Marriage? President Pressured to Use Pen for LGBT Workers The 114th: CQ Roll Call's Guide to the New Congress Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.