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Gay marriage could offer GOP edge

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WASHINGTON » The news Friday that the Supreme Court will rule whether same-sex couples have the right to marry brought on elation from gays and lesbians who believe the justices will decide in their favor.

But another group also saw a possible reason to celebrate if the court does indeed rule that way: Republicans.

If the high court resolves the issue as expected in June, it could deliver a decision that has the benefit of largely neutralizing a debate that a majority of Americans believe Republicans are on the wrong side of – and well ahead of the party’s 2016 presidential primaries.

To have the question disposed of and dispensed with, many Republicans say, could make their opinions on the matter largely moot, providing a political escape hatch that gives them an excuse to essentially say, "It’s been settled. Let’s move on."

For many in the party who would rather not be talking about same-sex marriage at all, this would be an outcome they could find palatable even if the court does recognize constitutional protections for same-sex couples.

When the Supreme Court said it would take up the question, the reticence to wade into the debate was evident. In most corners of the party – and, notably, from those who are likely to seek the Republican nomination – there was silence late last week.

The desire to calibrate unremarkable and inoffensive responses shows how the debate over same-sex marriage significantly departs from other major constitutional questions on social issues like abortion and why, unlike with abortion, it may not endure as an issue.

After Roe v. Wade was decided in 1973, anti-abortion groups were galvanized to overturn what the court had done through either a constitutional amendment or the appointment of like-minded jurists on all levels of the federal bench. It is a fight that rages on today.

"Good luck in a Republican primary saying the Supreme Court has decided the abortion issue and we should move on," said Republican pollster Whit Ayres. "That’s what you call a nonstarter."

And yet that is exactly what many Republicans have started to say about same-sex marriage. Few expect the same kind of mass movement to grow out of a decision that declares a constitutional protection to marry, nor do they envision the Republican primary process being dominated by litmus-test questions like the ones candidates perennially face on abortion – "Would you support a constitutional ban?" and "Would you pledge to appoint only justices who would overturn?"

Polling shows that support for abortion rights has barely moved in the last four decades, hovering at around 50 percent, according to Gallup. Support for same-sex marriage approaches 60 percent in some polls and keeps growing. (While a handful of senior elected Republicans like Sens. Rob Portman of Ohio and Susan Collins of Maine have broken with their party, the official national platform endorses marriage between only a man and a woman, and Republican lawmakers at all levels of government have led the charge against full legalization.)

There is however a significant portion of the party, notably its election-minded operative class and those hailing from liberal-leaning or moderate states, who were all but exultant over the news Friday because of the potential the court could at last settle the matter.

"I think it’s probably going to be a relief, because if the Supreme Court makes a final determination – and goodness knows, nobody can guess what the Supremes are going to do – then it’s off the table," said Shawn Steel, the Republican committeeman from California.

"If the Supreme Court settles it," Steel added, "then that’s why we have a Supreme Court: to settle those battles."

What also is different about the same-sex marriage question is that many of the politicians who are likely to seek the Republican nomination have been forced to directly confront it because the courts or legislatures in their states have moved so quickly to grant marriage rights.

This has led them to hew to a carefully circumscribed script. Crafted with the input of some of the party’s savviest messengers, it expresses sentiments that are fundamentally conservative: Respect for the rule of law and the courts that are increasingly siding with gay and lesbian couples who want to marry, and a recognition that people who want to share a committed relationship should not be marginalized.

Consider the statements from Republicans like Chris Christie of New Jersey, Mike Pence of Indiana and Scott Walker of Wisconsin, all of whom are considered possible presidential candidates. "A settled issue," is what Christie said in 2013 after a state court ruled that the state could not deny same-sex couples marriage rights.

Pence, speaking after the Supreme Court cleared the way in October for same-sex marriage in Indiana and four other states, said, "People are free to disagree with court decisions but we are not free to disobey them."

Walker, whose state was also included in that October decision, was just as acquiescent. "For us, it’s over in Wisconsin," he said. Walker, like Pence, had wanted the Supreme Court to uphold his state’s ban.

When Jeb Bush weighed in earlier this month after Florida started marrying gay and lesbian couples, he issued a statement that showed a politician who had undergone a striking evolution since his days as governor, when he championed a ban on allowing gay couples to adopt children and equated gay rights with "special treatment" for a class of people who did not deserve it.

"We live in a democracy, and regardless of our disagreements, we have to respect the rule of law," he said in a statement that stirred considerable discussion on the right and left. Bush, a religious Catholic, also urged respect for "couples making lifetime commitments to each other."

But what remains problematic for these candidates – and what is reflected in statements they often make in the next breath about the importance of safeguarding "religious liberties" – is the fact that many Republican primary voters do not want to drop the fight, especially in the conservative-leaning states that will be so crucial in picking the party’s nominee.

"Marriage won’t be the issue in the Southern primaries," said Oran Smith, head of the conservative South Carolina Palmetto Family Council. "But it is a box, an important box, that simply must be checked."

With the center-right 2016 hopefuls expressing a certain sense of acceptance that same-sex marriage in all 50 states could be a foregone conclusion, there is an opening for socially conservative candidates like Mike Huckabee, the former Arkansas governor, and Rick Santorum, the former senator from Pennsylvania, to make gay rights a wedge.

Sen. Ted Cruz of Texas, another possible Republican contender, has also signaled that he would push hard on the issue.

But a court decision greatly complicates the question for conservatives who espouse the importance of respecting the constitutional prerogatives of each branch of government.

And some conservatives see a split emerging between those who would honor a decision they disagree with and those who would say it is illegitimate.

Huckabee is one potential candidate who appears willing to challenge other conservatives on this point.

Speaking to a rally of advocates who oppose same-sex marriage last year, he said that the nine justices need reminding of who defines marriage.

"They are only the Supreme Court, not the supreme branch of government," he said, drawing cheers from the crowd. "They are most certainly not the supreme being from which all law ultimately emanates."

Jeremy W. Peters and Jonathan Martin, New York Times

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