On A Losing Streak, Conservatives Struggle To Keep Fighting Gay Marriage

Between the streak of court victories for marriage equality and the rapidly shifting tide of national public opinion, conservative guardians of traditional marriage are struggling to keep the cause alive, if not conceding defeat.

Pennsylvania Gov. Tom Corbett said Wednesday he won’t appeal a George W. Bush-appointed federal judge’s ruling this week that his state’s ban on gay marriage is unconstitutional, a revealing move for the GOP governor who’s running for re-election this year. He argued that “the case is extremely unlikely to succeed on appeal.”

The state’s Republican senator, Pat Toomey, who has consistently opposed gay marriage, stayed silent in the wake of the ruling. His office declined multiple requests for comment. Meanwhile, Sen. Bob Casey (D-PA) heaped praise on the judge’s decision, calling it “a critical step toward achieving equal rights for all Pennsylvanians.”

Pennsylvania is a microcosm of what’s happening across the country as federal judges in Utah, Oklahoma, Oregon and elsewhere knock down gay marriage bans. The streak is remarkable: not a single court has upheld a gay marriage ban since the Supreme Court ruling in 2013 that axed a key part of the Defense of Marriage Act, and which trial court judges say leaves little room to uphold state bans on gay marriage. Some of the decisions are being appealed in circuit courts and the case could conceivably make its way back to the justices.

“At this point, it almost isn’t news when a court strikes down a state’s marriage law. Indeed, it’s remarkable that, since the Supreme Court struck down the part of DOMA that denied federal benefits to married same-sex couples, not a single court has yet upheld a challenged state marriage law,” said Ilya Shapiro, a scholar at the libertarian Cato Institute who supports leaving marriage up to states. “It’s clear that the trend in popular opinion in support of marriage equality will continue, and perhaps even accelerate. Thus it seems that, at a certain point, the political process will simply change these laws, mooting and obviating lawsuits.”

On Wednesday, one day after the ruling, a Gallup poll found that support for gay marriage enjoys a 13-point advantage, 55 percent to 42 percent — an all-time high. The sea change in public opinion includes Republicans, especially younger Republicans: among 18- to 29-year-old GOP voters, 61 percent support letting gays and lesbians marry, according to a March 2014 Pew poll.

Some conservatives aren’t ready to give up just yet.

In a lengthy piece for National Review this week, the Heritage Foundation’s Ryan T. Anderson addresses the unsettling question for opponents of gay marriage: “where do we go from here?” He argues that conservatives can still win the fight if they “persuade our neighbors that our views about marriage are reasonable” and fight for them culturally and politically before the “chaos” of redefining marriage sets in. In other words, winning back hearts and minds.

But even he concedes that social conservatives are fighting an uphill battle.

“In the short run, the legal battle over the definition of marriage may be an uphill struggle,” Anderson wrote. “But in the long run, those who defend marriage as the union of a man and woman will prove to be prophetic.”

Ed Whelan, a conservative legal writer, had a more visceral reaction to the Pennsylvania judge’s call for tossing law against gay marriage “into the ash heap of history,” opining that it displays a “frighteningly Jacobin temperament” and “incredible hubris.”

On the national level, Republicans have all but given up talking about the issue since the DOMA ruling. The Republican National Committee warned last year of the “generational difference” in attitudes toward gay rights, suggesting that the GOP needs to be more gay-friendly to compete for younger voters. On the state level, some prominent Republican governors and certain subsets of legislators are quietly backing away from the fight against gay marriage, including New Jersey Gov. Chris Christie and New Mexico Gov. Susana Martinez.

Ironically, the swift action against gay marriage in the courts may free up Republicans from having to take a clear position in the fight between a large segment of their base and the tide of history.

The winning streak for marriage equality reflects warnings by former George W. Bush pollster Jan van Lohuizen, who warned Republicans two years ago this month that the tide of public opinion was shifting so quickly that the party should embrace and reframe gay marriage as a conservative cause because “freedom means freedom for everyone.”