After the Supreme Court’s historic 1954 ruling in Brown v. Board of Education, Southern politicians adopted a strategy that became known as “massive resistance.” It doomed the South to a losing battle against not just the court but also a majority of Americans.
Some GOP conservatives may be on the verge of making a similar mistake in the aftermath of the court’s ruling last week supporting same-sex marriage. At the very time moderate Republicans want to escape positions that isolate them from an increasingly diverse and tolerant country, some hard-right leaders seem ready to double down on a limiting version of “traditional values.”
Poll numbers show why defiance is likely to be a losing strategy. According to the Pew Research Center, 57 percent of Americans support gay marriage. In the aftermath of the court’s decision, this number will probably grow, especially among the younger voters the GOP needs to attract. Among millennials, born after 1980, 73 percent support same-sex marriage.
Whether the GOP follows the road of resistance depends on how the party’s leadership reads the political mood. Denunciations of the ruling came from some right-wing presidential candidates, such as former Arkansas governor Mike Huckabee. “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat,” he thundered.
Some moderate Republicans, such as Jeb Bush, straddled the issue, dissenting from the court but promising to uphold the law. Louisiana Gov. Bobby Jindal said the ruling “tramples on states’ rights” and that “no earthly court” can alter God’s will, but added that he would comply with court orders.
Deference to the court seems to be prevailing, for now, among lower-level officials, even in conservative states. The New York Times reported Monday that “officials in states across the South, citing the rule of law, softened their defiance and began offering marriage licenses to gay and lesbian couples.”
The most powerful and potentially polarizing dissent came from Sen. Ted Cruz, a Harvard Law graduate and former Supreme Court clerk. He told NPR’s Steve Inskeep that the five justices supporting same-sex marriage are “disregarding their oaths.” He proposed a constitutional amendment that would make justices subject to “periodic judicial retention elections.”
Cruz’s language was so extreme that it seemed almost a call to ignore or disobey the court. “There is no obligation on others in government to accept the court as the final arbiter of every constitutional question,” Cruz said. Pressed by Inskeep, he affirmed that state officials “should feel no obligation to agree that the court ruling is right.”
Such intemperate language may have been encouraged by the sneering tone of Justice Antonin Scalia’s dissent. Constitutional scholar Garrett Epps compiled in the Atlantic some of Scalia’s nastier comments about the majority opinion from Justice Anthony M. Kennedy. Scalia said Kennedy’s ruling was written “in a style as pretentious as its content is egotistic,” was “lacking even a thin veneer of law” and expressed “the mystical aphorisms of the fortune cookie.”
These conservative ripostes recall the aggrieved language used by Southerners after the Supreme Court ruled that school segregation was illegal. Conservatives asserted then the South’s deeply held values and way of life had been attacked. Southern conservatives were at first unsure how far to press their dissent, but that vacuum was filled by Sen. Harry F. Byrd.
“If we can organize the Southern States for massive resistance to this order I think that in time the rest of the country will realize that racial integration is not going to be accepted in the South,” Byrd said in his famous February 1956 speech. In line with the resistance strategy, schools were closed and court orders were ignored. It took federal troops to eventually impose desegregation.
This is the dark American past toward which some far-right Republicans seem to want to steer their party. The problem is that court-bashing may be good politics for candidates seeking support from older, whiter, more religious voters in the crowded GOP field. The country as a whole may accept same-sex marriage, but it’s backed by only 39 percent of people born before 1946, 34 percent of Republicans and 27 percent of white evangelical Protestants.
History tells us that intolerance is a losing bet in America, and that those who embrace defiance of the courts regret it later. The Richmond Times-Dispatch apologized to its readers in 2009 for its “editorial enthusiasm for a dreadful doctrine” a half-century before. “The record fills us with regret.”