Some Implications of NY's New Same-Sex Marriage Law

By Mike Dorf

Herewith, a few reactions to the passage last night of the Marriage Equality Bill:

1) Hooray! A great day for the Empire State.

2) Andrew Cuomo is now the front-runner for the Democratic Presidential nomination in 2016.  He already has fiscal conservative street cred. By 2016, the economy will have turned around and he can take credit for that. He spent political capital on the same-sex marriage issue and won, with some crucial Republican support.

3) The actions of the NY Republican Party during this debate were fascinating. The Republican leadership and the vast majority of Republican members of the NY legislature opposed legalizing same-sex marriage but nonetheless did not use their procedural leverage to block a vote.  Senate Majority Leader Dean Skelos deserves considerable credit for honoring his earlier commitment to bring the issue to the floor and for making this a "conscience vote" rather than insisting on party discipline.  I think there is a broader lesson there, because I don't believe that successful politicians of any party ever make important decisions like this without an eye on the political consequences. Here, it seems to me, Skelos was able to read the writing on the wall. He can see the generational divide on this issue and knows that in the long run there is just no angle in having his party seen as bigoted.  Political opinion is regional as well as generational, of course, so it will take some time to spread around the country, but eventually this issue will disappear from politics.

4) What will replace it? Ever since Nixon's "Southern strategy," the Republican Party has been very good at finding and exploiting social "wedge" issues.  First race. Then abortion. Then gay rights. Opposition to gay rights will soon (10 years?) be a non-starter, and unlike race, there will not be readily available ways to use the issue in a coded way. That's because on average, gay and lesbian Americans do just fine economically, so it won't be possible to favor formal equality while opposing programs that benefit the minority at issue--as conservatives have been able to do with respect to affirmative action and other matters that implicate racial politics.  They will continue to use race as a wedge issue, although its potency also diminishes over time, as America becomes less white.  (People like to talk about how white the typical Tea Party rally is, but the more important fact is how old).  Abortion will also remain a potent wedge issue.  Beyond that, as opposition to gay rights comes to be more of a liability than a valuable wedge issue, I would look to see the number 3 spot on the wedge issue hit parade increasingly filled with non-issues blown up to look like issues.  Examples in the relatively recent past include flag-burning; the "war on Christmas"; and various forms of personal attack (e.g., Kerry faked his war record; Obama was  "palin' around with terrorists;" etc).

5) Tomorrow I'll post a follow-up on the significance of the ways in which the marriage bill was amended before being enacted.

6) Did I say hooray?