AFF's Doublethink

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The GOP has long opposed same-sex marriage, and political strategists in both parties believe that Republicans have skillfully exploited the issue to their benefit at the polls. Yet while the issue remains likely to spark heated debate, it no longer appears clear that it’s the political asset that it once was. If anything, the broad trend lines point in the opposite direction. Right now, the big unknown in the considerable fallout to the California Supreme Court’s recent decision to strike down Proposition 22 - the 2000 ballot initiative that imposed a statewide ban on same-sex marriage - is what impact that ruling will have on Republican prospects in California and elsewhere this November.

It’s a tough question. As West Coast businesses brace for the almost $700 million in revenue that UCLA’s Williams Institute expects same-sex marriage to bring California, an issue that often divides Democrats is poised to do the same to Republicans. Protect Marriage, a right-leaning group that hopes to overturn the California Supreme Court’s ruling, has collected a million signatures to put its Marriage Protection Amendment on the ballot this November - a move that California’s own Republican governor Arnold Schwarzenegger opposes. And while he has drawn the ire of some social conservatives for siding with his state’s 100,000 same sex couples, Schwarzenegger has helped to spark an important debate that Republicans ought to have: Will the short-term benefits of their same-sex marriage opposition be worth the long-term political consequences?

On one hand, the California ruling has reignited the definition-of-marriage debates that Republicans seemed to win in November 2004, when 11 states voted on amendments to their respective constitutions to prohibit same-sex marriage. All of their amendments passed. More importantly, the ballot initiatives drove up conservative turnout and helped Bush to capture swing states, most notably Ohio. Karl Rove, the scheme’s architect, was heralded as a political Rasputin who ushered in Bush’s second term and also helped down-ballot Republicans.

If recent polls are correct, however, the same scheme might not work in the future. A poll conducted last month found that 51 percent of Californians support same-sex marriage - up from 28 percent in 1977. And, while a Los Angeles Times poll the same month seemed to contradict that result, it also found that half its California respondents who opposed same sex marriage considered it inevitable - not the fighting spirit that one would expect if those opposed to same-sex marriage were optimistic. From a national perspective, eight more states voted on same-sex marriage referenda in 2006, seven of them joining the eleven that had banned the practice in November 2004. None of that maneuvering, however, has slowed the tide of national public opinion toward same-sex marriage acceptance. A Gallup Poll released in May 2003 indicated that 60 percent of respondents agreed that same-sex couples ought to receive the same benefits accorded to heterosexual ones, and an ABC News/Washington Post poll conducted 2004 came to a similar result. Finally, a Gallup Poll released in May 2008 found that 40 percent of Americans support formal, same-sex marriage - up from 25 percent in 1996.

On the legal front, where conservatives have argued that marriage is a privilege, like driving, a consensus has begun to emerge to the opposite effect - that marriage is a Constitutional right. Mark Strasser, a law professor at Capital University Law School, points to Loving vs. Virginia - the 1967 case in which the U.S. Supreme Court legalized interracial marriage - as the basis for that argument.

Since Loving, a number of other SCOTUS rulings have diminished the claim that interracial marriage is analogous to same-sex marriage. In each, the Court has strained to find grounds on which to dilute the comparison - in one case noting that interracial and same-sex marriages had “different histories.” Regardless, the legal precedent set in Loving - that marriage is subject to equal protection under the Fourteenth Amendment - seems to be part of an irreversible trend toward inclusion.

Most of this has happened at the state level. In 2004, the Massachusetts Supreme Court ruled in a civil suit against the Department of Public Health that it was unconstitutional to refuse equal services to same-sex couples. In 2006, the New Jersey Supreme Court followed suit, finding that unequal treatment could “no longer be tolerated” under its state Constitution. And California came on board this spring, when its Supreme Court ruled that marriage is a “basic civil right” that can’t be denied to couples on the basis of their sexual orientation.

Clearly, there have been legal setbacks for same-sex marriage proponents, but most of them have had silver linings. In 2006, the New York Court of Appeals found that New York law prohibits the practice. It wasn’t long, however, until New York’s new governor, David Patterson, instructed state agencies to recognize out-of-state same-sex marriages, clearing a path for future Equal Protection challenges. And while there has been a recent pattern of statewide marriage bans across the Midwest, there has been a simultaneous pattern of civil union recognition for same-sex couples. Since President Clinton signed the Defense of Marriage Act - which denied more than 1100 “rights” under federal law to same-sex couples - in 1996, six states have approved civil unions, according all state benefits to same-sex couples that have been accorded to heterosexual ones, and four more have approved domestic partnerships, according some - but not all - state benefits.

With legal options dwindling, some conservatives have resorted to the argument that marriage is a sacred institution that ought to be revered and protected. But in a world where straight couples sign up for Elvis-themed weddings at Viva Las Vegas, and divorce at a rate of more than 40 percent for first time marriages - remember Britney’s 55-hour marriage to a childhood friend? - according to the National Center on Health Statistics, it hardly seems like an undue burden to let Rosie O’Donnell marry the partner with whom she has four children. The flippant attitude that much of the public seems to have toward marriage in the first place leaves Republicans in the awkward position of claiming to protect a “pristine” institution from same-sex coupling, even as news of Elizabeth Taylor’s seventh marriage breaks on Entertainment Tonight.

It also puts Republicans who oppose same-sex marriage on the losing end of a civil rights issue - the last place that Republicans can afford to be considering their already damaged brand. Indeed, the collateral damage from their same-sex marriage exploitation now could be the loss of much of a new generation of Republicans later - a fate more catastrophic, one could argue, than seeing Ellen Degeneres and Portia De Rossi married. In California, for instance, almost 70 percent of respondents under 30 support same-sex marriage, compared with just 35 percent of those over 65, according to the Field Poll. National numbers bare out the same idea. In their May 2008 poll, USA Today/Washington Post reported that almost 80 percent of the under-30 crowd considered same-sex marriage a “private” matter, while just 45 percent of seniors agreed. Of all the lost causes to pursue, then, a same-sex marriage ban seems not just futile but dangerous if Republicans hope to be competitive with the next generation of voters.

Of course, none of this will persuade the Republicans who maintain the Machiavellian belief that same-sex marriage opposition could confer some electoral advantage on them in November - which, indeed, it could. The issue is still a political landmine in some battleground states, and substantial portions of the GOP base still view marriage as an integral part of the Republican platform. James Dobson, in his 2004 book Marriage Under Fire, casts same-sex marriage as a threat to civilization, comparing it at one point to the Japanese attack on Pearl Harbor. Most GOP operatives talk about the issue in less divisive terms, but some continue to argue that Republicans will benefit from renewed opposition. One GOP strategist told Salon.com last month that Republicans hoped California’s ballot initiative would increase turnout and help to make the state competitive in November. In the long run, however, few serious observers believe the same-sex marriage war is one that Republicans can win. “There’s been a change in attitudes,” says Evan Gerstman, a constitutional law professor at California’s Loyola Marymount University. “The mainstream position now is civil unions. In 1996, that was a radical position.”

Quick to note the trend, some Republican politicians have begun to moderate their positions. In addition to Schwarzenegger, at least one more California Republican, San Diego’s Jerry Sanders, has stood up for same-sex marriage. “I do believe that times have changed,” Sanders told the press in September 2007. “And with changing time, and new life experiences, come different opinions.” Sanders cruised to re-election earlier this month. Californians are not alone. New York’s Michael Bloomberg, who switched his own registration to Independent in June 2007, nevertheless became the first high-profile Republican to soften his position on the issue when he announced in February 2005 that he supported full same-sex marriage rights. And, while some conservatives have derided Schwarzenegger and crew for moving off the reservation, all three are part of a forward-thinking new breed of Republicans who seem to understand that a more diverse electorate demands a more tolerant Republican platform. It’s too soon to know how big a role same-sex marriage will have in 2008, but it seems clear that the long-term fate of the issue is already settled. The question that remains, then, is how long it will take the Republican party to notice.

-Dorian Davis is a New York-based writer. He has published work in AFF’s Brainwash, Business Week, and New York Daily News.