In the course of a great op-ed on the new congress, Old Boss Mike Tomasky notes that splits inside the caucus on cultural issues are unlikely to be important because “there will be no votes in the next two years on any divisive social issues.” Quite so. It doesn’t really matter what, say, Heath Shuler thinks about marriage equality or flag burning because Nancy Pelosi isn’t going to push these topics to the floor — they used to come up all the time as a deliberate GOP legislative tactic.
This, however, is also the reason why groups seeking progressive social change can ill-afford to abandon the judicial process in favor of a single-minded focus on electoral politics. Even if some future scenario arises in which, say, 52 percent of the public favors gay marriage, the Democrats have a majority in the House, and a majority of House members favor gay marriage there still very little chance of a marriage equality bill passing. Even under those cirsumstances, some Democratic members will come from marginal districts where gay marriage is likely to be unpopular. Forcing a vote on gay marriage would imperil those members (even if they voted “no” it would be a problem for them) and protecting marginal members would be a high priority for the leadership. Unless gay rights groups could put a lot of financial clout behind a gay marriage push, it simply wouldn’t be worthwhile to pick a big fight over a controversial topic. What’s more, given the Senate’s massive overrepresentation of culturally conservative voters, it would always be extremely difficult to secure the 60 votes necessary to actually pass a gay marriage bill.
Recall that desegregation was a majority supported position long before the federal government actually did anything about Civil Rights. This was for roughly the same reason — civil rights was bad coalitional politics and the Senate provided ample room for a conservative minority to obstruct progress. Legislative action came eventually because judicial decisions provoked a series of crises that it was impossible for the elected branches in Washington to ignore. This reality doesn’t especially fit one’s intuitive notion of how democracy “ought to work” but it reflects the reality of democracy as actually practiced in the United States.