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The U.S. Supreme Court has agreed to hear challenges to the anti-gay Defense of Marriage Act (DOMA), which bars the federal government from recognizing state-sanctioned same-sex marriages. That was expected. What wasn’t so clear was whether the high court would also hear the challenge to California’s Proposition 8, through which voters amended the Golden State’s constitution to nullify same-sex marriage, which the legislature had authorized. Had the court not heard that challenge, an appellate court ruling against Prop 8 would have been upheld by default and California’s same-sex couples would have again been able to marry (which is why many had preferred the court take a pass on this one).

It is widely anticipated, and hoped, that the Supreme Court will recognize that the DOMA provision banning federal recognition is unconstitutional, treating gay couples as second-class citizens, and doing so on the basis of anti-gay animus. Moreover, while the court might now uphold Prop 8 and deny Californians marriage equality, there is at least the possibility that the court, through its Prop 8 decision, could declare that all states must allow same-sex marriage as a matter of equal protection under the law. Would that provoke a backlash that could strengthen the anti-gay contingent of the GOP? Probably. There is a sound argument that it would be better in the long run to let marriage equality advance through the states (as Jonathan Rauch argues here). There is also an argument that equal means equal. These are indeed interesting times.

More. Walter Olson expects the Supremes to punt.

Furthermore. James Taranto argues that constitutional law favors striking down the DOMA provisions, but upholding Prop. 8. If the court agrees, another California vote on same-sex marriage is likely, and more likely this time to favor marriage equality.

More still. Conservative infighting: Rod Dreher vs. Glenn Beck. And similar infighting within the British Conservative Party (more on that here).

Roger Simon, at PJ Media, tries to tell social conservatives some truths:

But first, a heavy dose of reality: Unlike abortion, where public opinion is going in the social conservative direction for various reasons (including sonograms), on gay marriage, it’s the fourth quarter, the score is about 80-0 and you’re on the your own five yard line with two minutes to go.

De facto gay marriages have existed in significant numbers in every one of our major cities and a lot of our suburbs for decades. Every year, the vote in favor of legalizing same-sex marriage is greater, recently winning in several states, and is likely to increase since the young vastly favor it. If you don’t think it’s going to be a fait accompli in the Western world in twenty-five years (probably considerably sooner), you’re living in cloud-cuckoo-land.

But see the blowback below Simon’s column from his commenters. Many are those who will not hear.

A large number of social conservatives seem unable to to move beyond the fabled “Reagan Coalition” of the 80s that brought together economic libertarians and the religious right. It was electorally successful through the Bush years, but those days are no more, at least in terms of the political acceptability of anti-gay animus. And so, the question posed in the heading.

More. Walter Olson writes in a Washington Post op-ed:

Despite the GOP’s historic identification with individual liberty and with getting the government’s nose out of citizens’ business, no one expects it to endorse same-sex marriage anytime soon. But one plausible path would be a GOP call for leaving the issue to the states, with New York going one way, for instance, and Texas another. That would probably capture a consensus among a broad range of active Republicans, fit reasonably well with the party’s other ideological stands and still distinguish its position from the Democratic Party’s support for same-sex marriage in its 2012 platform.

The GOP has left itself little room to maneuver. When some in the Romney campaign took an interest in the “leave it to the states” position this fall, they discovered that the candidate, like several of his former rivals for the nomination, had already signed a pledge circulated by the National Organization for Marriage committing him to support a constitutional amendment to ban same-sex marriage. Although many national polls now show support for marriage equality, the national Republican platform continues to endorse the same deeply out-of-touch proposal.

If and when the party’s leadership changes its mind, a whole lot of suburban Republicans will be murmuring under their breath, “About time.”

Political strategist Reed Galen, who was John McCain’s deputy campaign manager, writes at Real Clear Politics:

For those of us that grew up in an urban or suburban setting, friends of other ethnic or religious backgrounds were a given. The idea that a political party has steered itself (or allowed itself to be led) down a path that excludes, actively or passively, those who simply look different or lead dissimilar lives is ridiculous.

These positions also shine a klieg light on the GOP’s cognitive dissonance that’s been incubating for a generation. Republicans can’t be the party of smaller government, individual self-determination and self-reliance and also hold impenetrable positions on social issues ranging from abortion and gay marriage to assisted suicide and capital punishment.

More. Jim Geraghty writes at National Review that Republicans need to confront why their party is less popular than its conservative economic ideas (which a majority of Americans say they support, as long as they’re not attached to Republican candidates). Among his examples of how the party alienates voters it should seek to include:

It seems to be a knee-jerk, not-really-in-jest comparison when some conservatives discuss the issue of gay marriage: If two men or two women can get married, why not a man and an animal? … At a recent conservative gathering, one well-known pundit exclaimed, “Why can’t I marry my cat?”

Now, think about how this argument sounds to any gay or lesbian [person] or to anyone who loves them — to their mothers, fathers, brothers, and friends. It takes a consensual relationship that more and more Americans see practiced by their friends, neighbors, and relatives and equates it with criminal acts, among the most reviled in our society. Put another way, if some jerk in a bar came up and compared your relationship to your spouse to bestiality, you would probably be sorely tempted to knock his teeth out.

What’s significant is that this ran in National Review. It’s a sign of the times.

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Those who are libertarian-minded can take heart from this election analysis by the head of the highly regarded Pew Research Center, who writes:

…on balance, Americans remain moderate—holding a mix of liberal and conservative views. They generally believe that small government is better and that ObamaCare is bad. But the exit poll shows that 59% believe abortion should be legal, 65% support a pathway to citizenship for illegal immigrants, and a surprising plurality support legalizing same-sex marriage in their states. Threading the ideological needle with this electorate is vital for the Republicans in the future—and for the Democrats, too.

Democrats run the risk of over-reaching (again) if they think the election was a vindication for bigger and bigger “progressive” government.

More. A similar analysis, via the L.A. Times, “Has America gone from center-right to center libertarian?“:

the majority of the country remains slightly right of center when it comes to supporting lower spending, decreased debt and smaller government. But America appears to have shifted left of center in allowing more liberal policies on drugs and the institution of marriage. So, left on social issues and right on economics.

But that’s not the message being heard by the Obama administration, congressional Democrats and progressive activists, nor by many Republican officeholders and social conservative activists.

Furthermore. Waltor Olson has further analysis of how, in Maryland, GOP support was crucial for victory in the marriage referendum:

Republicans voted for Question 6 [in favor of marriage equality] in serious numbers around all the state’s major centers of population: in the Baltimore and Annapolis areas, in the suburbs of Washington, D.C., and in Frederick. And while the trend showed itself everywhere from small farm towns to blue-collar suburbs, it appears to have been strongest in the best-educated and most economically successful Republican communities. …

This spring, President Obama famously announced that his views on same-sex marriage had evolved. Faster than almost anyone seems to have predicted, views appear to be evolving among educated Republican voters in states like Maryland, as well. When will the leadership of the GOP get around to evolving, too?

More still. David Lampo writes, “Stop damning Republicans and start talking to them”:

It is time for gay rights leaders and supporters to embrace pro-gay Republicans and work with them to develop a long-term strategy that brings the message of freedom and social tolerance to every Republican leader and candidate and does not allow the religious right to frame these issues to their fellow Republicans through the lens of bigotry and intolerance. Only then can a strong, truly bipartisan movement for gay rights blossom.

Well, LGBT movement leaders could start by not working overtime to defeat leading gay-supportive Republican officeholders, like soon-to-be former Sen. Scott Brown. Alas, a “strong, truly bipartisan movement for gay rights” is the last thing these party hacks want.

Via the L.A. Times: “Voters in Colorado and Washington easily passed ballot initiatives — 55% to 45% in each state — to legalize the possession and sale of marijuana. … What transpired in Colorado and Washington were disciplined efforts that forged alliances between liberals and tea party conservatives, often using public health arguments to advance their cause.”

In those states, drug legalization activists recognized that small government (or even anti-government) tea party activists could be allies in seeking to protect individual liberty against an overreaching state, even in areas in which the government has been overreaching for decades.

We don’t see this tactic in the fight for marriage equality, however. One reason is that the government power issue is not as clear cut – we want to stop the federal government from telling states they can’t recognize same-sex marriages, and from actively discriminating against same-sex couples. On the other hand, some gay marriage advocates clearly would like the federal government to tell states they must recognize same-sex marriage, which may be defensible as a civil rights matter but is less likely to resonate among tea party conservatives.

Still, I and others of a libertarian bent have long sought more dialogue among tea party people and the gay-equality movement. A big reason that this has not occurred is that many progressive LGBT activists have joined with their compatriots on the left in thoroughly demonizing tea party types and conflating them with the religious right (of which there is some overlap, but not nearly to the extent that progressives have portrayed). In other words, if your political agenda as an LGBT activist is bigger and more intrusive government, economic redistribution to favored political classes, and higher taxes on wealth producers (that is, the Tammy Baldwin/Elizabeth Warren dream world), then seeking to work with libertarians in the tea party movement is going to be a non-starter from the get go.

More. Have tea party voters helped elect anti-gay religious rightists? Yes, but that’s not to say that they voted for them because of their socially conservative positions; they often seem to do so despite those positions because they see the conservatives as better on economic liberty, size-of-government issues. The current left/right partisan divide doesn’t present a clear pro-liberty option, forcing supporters of limited government to pick their poison.

Furthermore. Former Clinton advisor David Mixner, citing analysis by the Cato Institute’s Walter Olson, notes that Republican crossover votes were a key factor in the Maryland gay marriage victory, and that “in some very key counties it was clear that those who voted for Mitt Romney overwhelmingly also ended up supporting marriage equality.”

Progress is possible when Repubicans aren’t simply written off. But that requires gay alliances to break free from the control of Democratic party operatives whose goal is to turn them into party front (and fundraising) groups.

Still more thoughts on the future of the GOP from David Boaz. And from a “lonely college Republican.”

A GOP strategist asks, “Why should we sign a suicide pact with the National Organization for Marriage?”

The Advocate reports that marriage equality resonated strongly with women and younger voters (as was well known), but also with Hispanic voters, while blacks were evenly divided on the issue. These, of course, are groups that Republicans would need to attract if they hope to win elections, as noted in an election analysis in the conservative journal Commentary, GOP Can’t Be the Party of Old White Men.

That imperative, as noted below, will be at odds with the defeat of gay-supportive GOP social moderates, which leaves the Republican party in Congress more anti-gay than before. What that portends for the future remains to be seen.

More. From the Washington Blade: “Balance of power will likely prevent action on LGBT bills.” How’s that one-party strategy working out? Thank goodness LGBT activists helped prevent openly gay Republican Richard Tisei from winning a House seat and being part of the caucus conversation–I mean, how would that have served the one true party?

Some thoughts:

Marriage equality wins! First, the good news, and it’s big: Voters
in Maryland, Maine, Minnesota and (apparently, if narrowly) Washington State voted in favor of marriage equality, breaking a long, consistent losing streak in state referendums. That’s huge. (The votes in three of the states legalize or keep marriage for gay couples, while the Minnesota vote defeated an amendment banning same-sex marriage, which is not currently legal there.)

In Maryland, our friend Walter Olson deserves great praise for securing public endorsements from prominent conservatives for saving the Maryland law. His work is a template that others should follow.

Next up, the likely U.S. Supreme Court hearing on the section of the Defense of Marriage Act (DOMA) barring federal recognition of same-sex marriages that are recognized by the states. These victories help make the case that the time has come to stop prohibiting legal equality for gay couples (the Justices are not supposed to, but do, consider such things).

Obama’s Pyrrhic victory. I think James Taranto said it best: The Case for Obama: Re-election would ensure he is accountable for the mess he inherits from himself.

Defeat for pro-gay Republicans. The Human Rights Campaign, the once-nonpartisan and still largest LGBT political pac, helped defeat Log Cabin backed Massachusetts Sen. Scott Brown, one of the leading moderate and gay supportive Republicans, in favor of leftwing icon Elizabeth Warren. The worst fear of progressive LGBT Democrats is a Republican party that isn’t uniformly anti-gay.

Similarly, and sadly, in a closely watched Massachusetts congressional race, openly gay Republican Richard Tisei had a shot at making history—without the backing of HRC, naturally—but lost in a squeaker to an ethically challenged Democrat. And now, late word that Democrat Rep. Bob Filner has beaten openly gay Republican Councilman Carl DeMaio in the race for mayor of San Diego. LGBT progressive activists in the area worked overtime to defeat political apostate DeMaio. It’s what they do.

In Wisconsin, an open Senate seat was won by Democrat Tammy Baldwin, who is openly lesbian, over former governor and GOP moderate Tommy Thompson. While the election of an openly gay person to the U.S. Senate is to be lauded, Baldwin, alas, was one of the most leftwing members of the House and is likely to now be the most leftwing member of the Senate. This, and the overall nature of progressive LGBT activism, will further strengthen the identification of gay legal equality with an ideological agenda of crushingly bureaucratic regulation, growing government dependency and redistribution to favored political classes. Good news for the party of the left and its operatives; not so good for securing a firm foundation for gay Americans’ legal equality.

More. As in 2010, the religious right again cost the Republicans some Senate seats they were expected to easily win before extreme utterances came out of the mouths of their candidates. Last night, this was particularly evident in the case of Missouri Republican Todd Akin’s loss to unpopular Sen. Claire McCaskill (he of the infamous “legitimate rape” comment). Some are making the same argument about Indiana Republican Senate candidate Richard Mourdock, whose poorly stated comments on all life being a gift from God despite rape were, to be fair, gleefully distorted by Democrats and the media.

Furthermore. I had previously blogged these links about pro-gay GOP House candidates Richard Tisei in Massachusetts and Nan Hayworth in New York, and Senate candidates Scott Brown in Massachusetts and Linda McMahon in Connecticut. None were supported by HRC, and all lost their races to progressive Democrats. As a result, the GOP will be even more anti-gay and thus provide plenty of fundraising fodder for HRC, which will lament the absence of pro-gay voices in the GOP, as they work to defeat pro-gay voices in the GOP, and send out more fundraising fodder….

Still more. As expected, lots of chortling from the Democrats’ loyal LGBT party operatives that Republicans are now irrelevant and to be consigned to the trash heap of history. Well, after all, Obama did win 50.4% of the popular vote. It’s the end of history—and the two-party system, because 50.4% seals the deal. No need to reform the GOP and promote pro-gay Republican candidates because the Democrats rule the day with their 50.4%, now and forever.

More still. Reader “Another Steve” responds to another commenter:

This issue is NOT whether the Democratic candidates were better than the GOP candidates [in the races mentioned], but whether the GOP candidates were moderates whose positions would help drive the GOP away from its hard anti-gay stance and toward at least a moderate view on gay issues. By refusing to support (or, in races like Scott Brown vs. Elizabeth Warren), actively working to defeat moderate, relatively gay-supportive Republicans, LGBT activists have ensured that the GOP does not move forward. As Miller states, that’s good for HRC’s fundraising and for keeping gays tied to the Democratic party, but not good long-term when the country remains 50/50 split between Democrats and Republicans.

The leader of the once-nonpartisan Human Rights Campaign laments that Congress lags in support for LGBT equality. How’s that one-party strategy working out (check out the group’s 2012 endorsements)?

Meanwhile, a new political action committee that actually aims to make a difference by electing pro-gay Republicans to Congress announced its endorsements. Plus, candidates endorsed by the Log Cabin Republicans are listed here, and those backed by GoProud are listed here.

In some cases, candidates backed by GoProud and/or LCR are opposed by HRC. So instead of targeting the worst homophobes, the nation’s largest LGBT political pac is working to defeat gay-supportive Republicans (in open races, or races where the Republican is the incumbent), such as Massachusetts Sen. Scott Brown.

The Republican gay groups self-identify as partisan; HRC doesn’t but, of course, is.

More. Lots of braying from the party operatives. The facts speak: HRC couldn’t find one—ONE—Republican congressional candidate to endorse. Not even openly gay Richart Tisei in Massachusetts. Shame on HRC, and its supporters.

Furthermore. Via the New York Times:

A victory for Carl DeMaio, who is locked in a tight mayoral race, would make San Diego the second-largest city in the country to elect an openly gay mayor, and by far the largest to elect a gay Republican. Yet, perhaps no group has opposed Mr. DeMaio as loudly as this city’s sizable gay and lesbian population. . . .

[P]arts of the crowd booed Mr. DeMaio at a mayoral debate at the gay and lesbian community center here. He was booed again as he walked hand in hand with his partner in this year’s gay pride parade. And many gay and lesbian leaders here have lined up behind Bob Filner, 70, a Democratic congressman and Mr. DeMaio’s opponent in the Nov. 6 election. . . .

Jim Kolbe, an Arizona Republican who became the second openly gay Republican in the House when he came out in 1996, said he faced opposition similar to what Mr. DeMaio has encountered from gay voters….

We’ll see from the election if it’s actually opposition from “gay voters” as much as it is from vocal and media-savvy progressive LGBT Democratic party activists.

More still. From author David Lampo’s Facebook page, a link to: Republicans support same-sex marriage, too. He comments, “The numbers grow every year. It’s time all gay rights advocates stop demonizing them and start talking to them.”

As I’ve said before, it makes sense. If they failed to do so, albeit with well-stated qualifications, they would have been frozen out with no access, as happened when the group’s former leadership failed to endorse George W. Bush’s re-election. Being in the room when the platform is debated, for instance, didn’t win the day this year, but over time it will. This is a long-term strategy that, if we’re serious, we need to support.

LGBT Democratic party operatives will have a field day, of course, but their goal has never been moving the GOP forward—quite the opposite. The more virulently anti-gay the Republican party remains, the better for their party. But their braying should not dissuade efforts to work within the GOP, particularly for those who wonder if, after four more years of Obama, there will be much left of the once-prosperous and dynamic U.S. economy for Chris Christie to salvage.

Second Circuit Court of Appeals Chief Judge Dennis Jacobs, a long-time favorite of the conservative Federalist Society, strikes down section 3 of the Defense of Marriage Act as unconstitutional.

He’s yet another conservative, Republican appointed judge striking a blow for gay rights and legal equality.

The next round will be in the U.S. Supreme Court, where Reagan-appointee Justice Anthony Kennedy is likely to provide the majority vote that ensures the federal government doesn’t treat same-sex couples as second-class citizens.