This time, Democrats wielded social issues as a wedge against Republicans, rather than vice versa. And from gay marriage (which Obama endorsed at the beginning of the general-election campaign) to abortion (which elicited inflammatory remarks on rape from losing GOP Senate candidates in Indiana and Missouri), Democrats were only too happy to use these issues to divide and conquer.
In Obama’s second term, the fight over health insurance coverage for contraception will ignite anew. Despite months of controversy, the administration still hasn’t solidified rules determining how employees of religious institutions will get birth-control coverage. Before the implementation date next August, Catholic bishops and the Obama administration will likely go another round in the ring.
Even before that, the Supreme Court may rule on the Defense of Marriage Act. Jurists in lower courts have penned narrow decisions that Lanae Erickson Hatalsky, director of social policy at the Democratic think tank Third Way, calls “essentially love letters to Justice [Anthony] Kennedy,” frequently the high court’s swing vote. Arguments for federalism could prove pivotal: Kennedy may be more likely to strike down the federal law if he believes he can do so without telling every jurisdiction what rights they must accord to gays and lesbians.
Even if the Court nullifies the 1996 law, policymakers would have to unravel an administrative Gordian knot. The act touches Social Security, military benefits, programs administered jointly with the states, and immigration rules. “I think the Obama administration is going to spend an intense amount of time on DOMA,” Erickson says.