Just over a year ago, Rep. Tim Huelskamp reacted strongly when the Supreme Court struck down the Defense of Marriage Act.
The Kansas Republican vowed a constitutional amendment to protect state rights to define marriage as between one man and one woman. He solicited support for his proposal from his colleagues. He went on “Meet the Press” and CNN to tout it.
But like many Republican lawmakers, Huelskamp was publicly silent Monday after the Supreme Court let stand court rulings that paved the way for same-sex marriages in his state and 10 others. The lack of reaction from GOP leadership appears to reflect an acknowledgement of voters’ acceptance of same-sex marriage as well as uncertainty about the impact of the court’s action, though they still must play to parts of their political base who remain opposed, say a Republican Senate aide and an advocate for same-sex marriage.
Huelskamp was joined by Speaker John A. Boehner of Ohio, who did not issue a statement. Neither did Majority Whip Steve Scalise of Louisiana, who as a state legislator sponsored the amendment banning same-sex marriages and civil unions in Louisiana.
Senate Minority Leader Mitch McConnell of Kentucky did not issue a statement, and neither did Minority Whip Sen. John Cornyn of Texas.
The muted reaction comes from two types of political pressure, say the GOP aide, speaking on background, and the advocate.
First, the Supreme Court didn’t issue a definitive ruling on the same-sex marriage issue like it did in the United States v. Windsor. That 5-4 decision in June 2013 struck down the federal Defense of Marriage Act (PL 104-199), the bipartisan,1996 statute that defined marriage for federal purposes as the union of a man and a woman.
On Monday, the Supreme Court decided to let stand the lower court decisions that overturned same-sex marriage bans in appeals from the five states. On Tuesday, the 9th U.S. Circuit Court of Appeals struck down same-sex marriage bans in Idaho and Nevada. The ruling also would affect bans in Montana, Alaska and Arizona, potentially adding five more states to those where same-sex marriages are now legal.
Opponents of same-sex marriage believe that several cases working their way through appellate courts could yet bring the issue before the justices.
But the relative silence or tacit acquiesce of Republican lawmakers also comes from the continued social acceptance of same-sex marriage across the country, said Evan Wolfson, the founder and president of the nonpartisan group Freedom to Marry.
Republicans realize they need to get more in step with independent voters and younger Republicans who support same-sex marriage, Wolfson said. But they also must stay in step with voters who have learned to live with it but don’t love it.
“They really are trying to straddle, and do no harm and change the subject,” Wolfson said.
For his part, Huelskamp said he was disappointed in the Supreme Court’s action, but he was kept too busy to respond because of five meetings in his district, including three town halls. He represents a solidly Republican district.
Huelskamp said he will continue to push his constitutional amendment, and “will work closely” with Sen. Ted Cruz, the Texas Republican who voiced the most outspoken criticism of the Supreme Court’s move on Monday.
Cruz called the justices’ decision to stay out of the same-sex marriage cases “tragic and indefensible” as well as “judicial activism at its worst.”
“Marriage is a question for the states,” Cruz said in a statement. “That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.”
Utah Republican Sen. Mike Lee, who also issued a public statement and whose state now will allow same-sex marriages as a result of the decision, called the Supreme Court’s action “disappointing,” saying that nothing in the Constitution forbids a state from defining marriage as a union between a man and a woman.
“Whether to change that definition is a decision best left to the people of each state — not to unelected, politically unaccountable judges,” Lee said. “The Supreme Court owes it to the people of those states, whose democratic choices are being invalidated, to review the question soon and reaffirm that states do have that right.”
The other Utah Republican, Sen. Orrin G. Hatch, did not issue a statement about the Supreme Court. In a speech Monday, however, Hatch noted the Obama administration argued to the Supreme Court that the federal Defense of Marriage Act violated the Fifth Amendment’s implicit guarantee of equal protection.