Bench Memos

NRO’s home for judicial news and analysis.

Where’s Gay Marriage?


This presidential campaign cycle has bypassed several issues white-hot last time out. You can thank (or blame) Iraqi militias and the plummeting dollar for the rearrangement. Among the issues MIA this year is same-sex marriage. Four years ago it was front and center in many contested states; it may have been the difference maker for Bush in Ohio (and, so, in the whole election). Polls show that voters now rank same-sex marriage near the bottom of issues they care about. The candidates say almost nothing about it. Still, there is a real partisan divide here. Obama and Clinton say that they support “civil unions” but not “gay marriage”. McCain opposes both proposals. That is a big difference. But even bigger is that either Democrat would nominate judges friendly to a constitutional right to “gay marriage,” just as Massachusetts’ judges were, and as Justices Souter, Ginsburg, Breyer, and Stevens almost certainly are. You can be sure that McCain would nominate a different breed of jurist. Thus “gay marriage” is really part of the judges issue, which (as I said yesterday) is itself in deep background this campaign. Too bad.

The issue may yet achieve liftoff, when — if — the California Supreme Court decides Griswold v. California before Election Day. Argument in that challenge to California’s law prohibiting same-sex marriage was heard on March 4. A decision in either direction would probably concentrate the candidates’ and the voters’ minds on both marriage and judges — better late than never.

A very able and down-the-middle analysis of the state of play on the marriage issue has just been posted by the Pew Forum here.


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