When you suffer a policy defeat, you have a few choices for what to do next. You can move on, giving your attention to other issues. You can look for ways to make progress on the issue, this particular setback notwithstanding. Or you can simply refuse to abide by the new state of affairs, whether it’s a law passed by Congress or a ruling by the Supreme Court. With the two major rulings the court made last week, Republicans faced this choice, and more than a few of them are choosing refusal. So far it may be just rhetorical, but it could open up yet another rift within the Republican Party as it tries to pick a presidential nominee and then unite under a banner that can win the support of a majority of the electorate.
There is a clear divide among Republicans in how they’ve reacted to the court’s decision in Obergefell v. Hodges, and it roughly correlates to how much concern each individual has about winning that national majority. Jeb Bush said the focus now should be on protecting religious liberty, presumably that of our nation’s oppressed bakers and florists. Sen. Marco Rubio (R-Fla.) agreed, saying “we live in a republic and must abide by the law.” But in other quarters, there were hints of the kind of resistance we saw after the Supreme Court struck down segregated schools six decades ago.
Or at least there were people advocating that kind of resistance, if the resistance itself hasn’t yet emerged on any significant scale. Texas Attorney General Ken Paxton announced that if county clerks in his state have religious objections, they should refuse to give marriage licenses to same-sex couples. If someone decides to sue them, “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.” Mike Huckabee predicted there would be a campaign of civil disobedience from Christians and reiterated his bizarre legal theory that Supreme Court rulings have no effect until Congress passes a law authorizing them. Some, like Wisconsin Gov. Scott Walker, are advocating a constitutional amendment reversing the decision. Sen. Ted Cruz (R-Tex.) argued that states that were not party to the suit are not bound by it, so they don’t have to obey the ruling until a court specifically orders them to. Sen. Rand Paul (R-Ky.) wrote an op-ed stating his belief that if gay people are allowed to get married, then government at all levels should simply stop issuing marriage licenses altogether.
You can say all this is just bluster, and you wouldn’t be wrong. Other than the odd county clerk who can give a couple trying to get their license a very inconvenient day or two, there isn’t much anyone who objects to the court’s ruling can do. But the louder they are about it, the more they reinforce the idea that the Republican Party is the party that not only hates gay people, but is also stuck in the past and refuses to grant the legitimacy of any institution it doesn’t agree with. And candidates like Bush and Rubio will no doubt be attacked for being insufficiently militant on this issue.
The idea that the Supreme Court no longer needs to be heeded once it rules in ways they don’t like has a parallel in how Republicans have acted toward Barack Obama throughout his presidency. From the beginning, large sections of the party’s base, and even many of its elected officials, simply refused to accept that Obama is the president and wields the powers of that office legitimately. As many as half of all Republicans have believed at various times that with the cooperation of ACORN, Obama stole both the 2008 and 2012 elections (despite the fact that ACORN, never particularly powerful, went out of business in 2010). And let’s not forget that Obama literally had to show his birth certificate to prove he’s an actual American (and some people weren’t satisfied even then).
That kind of extremism — not just proposing radical ideas, but also being ready to shut down the government or have it default on its debts, and refusing to accept the legitimacy of the institutions of American government — has been one of the hallmarks of the Obama era in the history of the GOP. Plenty of Republicans find that deeply troubling, but they aren’t the ones who have been defining the party’s identity for the past six years.
It’s possible that once the party chooses its nominee — presuming it’s someone like Bush or Rubio, and not someone like Cruz — and that nominee sets about trying to convince the middle of the American electorate that he’s a reasonable guy, all this noise will be quickly forgotten. But it will make that nominee’s task significantly harder, as his last couple of predecessors discovered.