The “Judicial Activism” Dog Whistle Gets a New Tone

So the CW after yesterday’s Supreme Court decision leaving in place Circuit Court rulings against same-sex marriage bans is settling: this is great news for the party of Traditional Marriage, whose pols can now shrug and point to the Court and change the subject before the young-uns realize the GOP still considers gay people God-defying sodomites.

I still say we haven’t heard definitely from Iowa conservatives that 2016 presidential candidates will be allowed not to talk about same-sex marriage. But the most likely development is that GOPers will now be expected to ratchet up their denunciations of “judicial activism,” which previously more or less meant “Let’s overturn Roe v. Wade!”

The Supremes’ action also creates some enhanced incentive for ritualistic invocations of support for state’s rights. Now by the time voters start voting in 2016, it’s possible that the only states which could reliably be expected to maintain a same-sex marriage ban if it were allowed would be Alabama and Mississippi, but that won’t matter to cultural conservatives.

Ultimately conservative religious opponents of same-sex marriage will probably retreat to the position of asking their churches not to perform civil wedding ceremonies at all, creating a dual system like that prevailing in Europe. But at the same time, they will continue to battle in court for the “right” to disregard in various ways the validity of same-sex marriages, and blast as “activists” the judges who refuse to intervene on their behalf. So the judicial wars will continue and intensify, at least for the Christian Right. And the most interesting question will be whether Democrats manage to make the shape of the judiciary a serious 2016 issue for their own “base” as well.

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.