Next Year’s SCOTUS Sensation?

As commentators begin to run out of words to speculate about the murky maneuverings of the Supreme Court on same-sex marriage issues as reflected in oral arguments, it’s occurring to some to compare and contrast the trajectories of law and public opinion on gay marriage and that other hardy perennial of the Culture Wars, abortion.

At Wonkblog, Sarah Kliff sums up the anomaly:

Tuesday marked for a watershed day for gay rights activists as the Supreme Court heard oral arguments on a case with the potential to legalize same-sex marriage across the country.

Across the country and 1,500 miles west of Washington, an equally notable event took place: North Dakota enacted the country’s most restrictive abortion law, barring all procedures after six weeks.

For decades, support (or opposition) for gay marriage and abortion went hand in hand. They were the line-in-the-sand “values” issues that sharply divided the political parties.

Not anymore. ”As recently as 2004, we talked about abortion and same sex marriage in the same breath,” says Daniel Cox, research director at the Public Religion Research Institute. “They were the values issues. Now, it doesn’t make sense to lump them together anymore. We’ve seen a decoupling.”

Actually, I beg to differ in part: abortion policy is, more than ever, a reliable and quasi-universal item that divides the two major political parties.

What’s different is that there’s no clear generational trend on abortion that makes the conservative and Republican position doomed, as Kliff notes:

Younger Americans have become increasingly supportive of gay marriage in a way that hasn’t necessarily happened for abortion rights. Young Americans’ views on same-sex unions look nothing like previous generations. But when it comes to abortion rights, Millennials look a lot more lilke their parents.

Millennials, PRRI has found, have similar views to the general population on the morality and legality of abortion. Fifty-two percent of the general public thinks abortion is “morally wrong.” Among Millennials, that number stands at 50 percent. Fifty-six percent of all Americans think abortion ought to be legal, compared to 60 percent of the younger crowd.

In terms of state activity, the irony is that a development adverse to the anti-choicers–President Obama’s re-election–is partially responsible for the wild competition Republican legislators around the country have been undertaking to enact the most irresponsible and–under existing precedents–blatantly unconstitutional abortion restrictions. Now that they’ve been denied a Romney presidency where Supreme Court appointments would be carried out under a strict anti-choice litmus test, abortion-rights foes have clearly decided to initiate a challenge that will test the commitment to Roe v. Wade and Planned Parenthood v. Casey of the existing Court–and particularly its erratic “swing vote,” Justice Kennedy, who opened the door to new abortion restrictions in his bizarre opinion in a 2007 decision upholding a federal ban on so-called “partial-birth-abortion.”

When North Dakota’s Gov. Jack Dalrymple signed that batch of radical bills on abortion yesterday, he might as well have been holding up a big sign reading: “Hey, Anthony Kennedy! These bills are for you!” So I wouldn’t be surprised if abortion is the big issue in oral arguments before the Supremes next year or the year after that.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.