Can’t tell you who this is from or how I got access to it—suffice it to say the person is a player in conservative fundraising circles.
1.) …once we’re through the present season of outrage, it will still be the case that Republican candidates need to denounce the “legislating from the bench” aspect, but it will become important to shift the outrage away from gay marriage itself. Ditto with the case about religious liberty. On the substance of gay marriage we need to accept it as a done deal.
2.) We will lose in 2016 if the Democratic candidate can convincingly say: “The Republicans will reverse the gay-marriage decision!” We need a candidate who can say, “No, regrettable as its manner of implementation was, gay marriage is here to stay. We’ve had enough debate.”
3.) There are tons of voters who are willing to vote Republican for the first time in years who will balk if a threat of the decision being reversed emerges. If that threat emerges, the Democrats will make a celebration and defense of gay marriage a central campaign theme.
4.) Now a reversal of Obergefell would not, I assume, effect the status of all those married in the meantime. But it could call the validity of those marriages into some question in the public mind, a confusion the Democrats would be sure to exploit. More importantly, in the states that returned to refusing gay marriage, gays after a certain date would be told “Sorry, you’re just a little too late!” The political ads write themselves.
5.) Now as to the problem T. [a consultant/lobbyist I won’t name here] pointed out, yes, it does look like originalist justices will have to overturn Obergefell. Those four dissents are hard to ignore, and so if we get to replace a liberal justice with an originalist, it probably will be overturned.
6.) But since this is political poison to us, we must deny this, must stay as mum as possible, suggest that all we want is justices who will read the Constitution as the Constitution, that it would be inappropriate to pre-judge cases, that no-one can predict retirements, etc.
7.) It would be helpful if a strain of originalism or judicial deference existed that would lead us to expect the jurists who embraced it to abide by the Obergefell precedent. The Republican candidate could hint that he would appoint one of those if pressed on the issue. M. [unclear who this is] is looking into this.
I can’t help adding here that this strategist might like the option of a GOP candidate hinting that he or she will appoint a libertarian jurist like Ilya Somin or David Bernstein. But let’s get to his summary:
8.) In sum, we need to deflect, deny, and to stay mum about the judicial p’s and q’s. We instead must employ a “now that we’ve resolved this contentious issue” rhetoric. Americans are too dumb, or too emotionally invested, to distinguish between the constitutional issue and the policy one. Whenever we assume they can, we lose. Since they are so used to thinking about “gay marriage” as one issue, their learning that the judges we will appoint might reverse “the gay marriage decision” will be interpreted as our bitter-loser refusal to let go of the issue. So the thing to do is talk as if we think that the gay marriage issue is settled. That is what we non-extremist Republicans want anyhow; but whether we can get the conservative justices to side with us or not, good strategy demands that we talk as if the debate is over.
Okay, as you likely guessed, this is a satire. There is no such memo. And yet, the above is pretty much what a number of “sage” conservatives and Republicans are going to be trying to sell us on. Points 3) and 4) are simply true, after all, and 2) might be pretty close to the truth.
We can all understand the instinctive desire to be done with this issue, but most of our “move on!” Republicans have not done the full strategic thinking done above, nor considered its obvious flaws. The above memo spells out what that “move on” talk must actually assume, given the fact that Republican victory in 2016 could mean a reversal of Obergefell.
The idiocy and arrogance of this strategy is apparent once we really lay it out, as it rides on the assumption that the American people aren’t going to be able to figure the situation out—see my “Wouldn’t It Be Nice?” below for a few more of the p’s and q’s here. Democrats will have every incentive for getting them to figure it out.
So we have to face it: Obergefell itself, and not just its religious liberty ramifications, will be a campaign issue in 2016 whether we want it to be or not. The only ways around this are a) to either try to be deceptive, as described above, or b) to cease to be conservative, by renouncing originalism.
It’s also the case that a), in addition to not fooling SSM-supporters wavering between the parties, will discourage the conservative base by making it unclear where the GOP candidate stands, and that one of the main ways Republicans lose elections these days is by discouraging conservative turnout. And b), if anyone dared to try it, would rightly enrage the base. In time, our libertarian jurists might make b) an easier move to make, but my sense is that we aren’t there yet. (Of course, I never want us to be.)
One final point. I remain someone who knows that it is an egregious misinterpretation of our Constitution to find a right to same-sex marriage within it–you can know it yourself if you take the time study a little constitutional law; and as for the policy question, I remain someone who will continue to vote against same-sex marriage every chance I get, for reasons you’ve already heard articulated by other conservatives over the last fifteen years. But there is a way for conservatives or conservative-libertarians who as a matter of policy are for same-sex marriage, or at least who are for the debate about it being concluded, to stand for such positions without pitting themselves against honesty, originalism, and the conservative base. It centers around a proposal of mine called the “responsibility amendment.” More on that soon.