Gallup Says….

As of this month, 60% of Americans now support same-sex marriage, up from 55% last year, and the highest Gallup has found on the question since it was first asked in 1996.

Regarding political affiliation, the breakdown is Democrats at 76% support, independents at 64% and Republicans at 37%. However:

Those who are opposed to gay marriage are a good deal more likely to say that a candidate’s stance on the issue can make or break whether that candidate receives their vote (37%) than those who are supportive of gay marriage (21%). And both are more likely to say the issue is a defining factor than they have been in the past.

On both ends of the political spectrum, this could make same-sex marriage a more salient issue in the 2016 election than it has been previously. While pro-gay marriage voters are more likely to hold a political candidate’s feet to the fire than in the past, there is an even larger bloc of anti-gay marriage voters who could reject a candidate for espousing marriage equality.

Gallup concludes:

While an anti-same-sex marriage position should not present a challenge for GOP candidates in the primary, it could be more challenging in a general election setting given majority support among all Americans.

I’d add that GOP presidential candidates who talk adamantly about marriage being a 2,000 institution that apparently has never changed and must not be altered by the judiciary (some would allow by popular vote) are going for the base, and in all likelihood never going to be president.

But they’ll carry the hardcore religious right vote.

20 Years from DP Benefits to Marriage

As the Cato Institute’s David Boaz and I both predicted 20 years ago(!), domestic partner benefits may be left behind in an era when all couples can get married. David’s May 13 blog post at the Cato at Liberty blog takes note of the long road from then to now. He also links to both recent Wall Street Journal coverage on this development (“Firms Tell Gay Couples: Wed or Lose Your Benefits“), and my January blog post (“Domestic Partner Benefits Are (Almost) Passé“).

For the historically minded, two decades ago David addressed the issue here, among other places, and I did so here.

Rearguard Actions

Leading up to and after a Supreme Court ruling in favor of marriage equality, we can expect to see more last-ditch actions such as those aimed at forbidding county clerks from issuing same-sex marriage licenses, which could be passed in Texas and in the deep South, until federal courts put these efforts asunder.

We’d be in a stronger position to oppose these efforts to enshrine discrimination by the state if certain quarters weren’t using the power of the state, where they are in control, to force private vendors to provide services to same-sex weddings (the comments to the Dallas Morning News story contain many claims that it’s LGBT people who are the ones being intolerant, provoking responses claiming that our intolerance is justified intolerance while your intolerance is just intolerance…or whatever).

On a related front, CNN.com looks at the schism between Christian conservatives and big business over defense of religious freedom laws. Then again, the populist right and its counterpart, the progressive left, have never really looked kindly on big business anyway.

More. The debate over whether independent vendors with religious views opposed to participating in same-sex weddings should be forced by the state to do so gets confused, often deliberately by the right, with a related but different issue: whether civil servants should be able to opt out of performing same-sex marriages. As I posted last month:

…here I think the answer has to be no. There is a key difference between private, self-employed citizens who don’t want to provide creative services to same-sex weddings, and servants of the state.

While some of my friends on the left seem to think everyone is essentially (or should be) treated as a servant of the state, that’s actually not the American way, and shouldn’t be.

But, on the other hand, if government officials can’t perform their duty to treat all citizens equally, citing their own religious convictions, then they should step aside. Separation of church and state is also the American way.

Cameron’s Victory

Congrats to British Prime Minister David Cameron on guiding the Conservatives to an unexpected victory, and who famously said in 2011, despite opposition from many in his party:

“Conservatives believe in the ties that bind us. Society is stronger when we make vows to each other and we support each other. I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.”

Looking back at the Washington Post‘s coverage at the time, Cameron’s efforts drew fire not just from some fellow Conservatives but from prominent British figures on the gay left:

“This is more of David Cameron trying to drag the Conservatives kicking and screaming into the modern world,” said Ben Bradshaw, a ranking Labor lawmaker who in 1997 became one of Britain’s first openly gay members of Parliament. “Of course, we’ll support it, but this is pure politics on their part. This isn’t a priority for the gay community, which already won equal rights” with civil partnerships.

He added: “We’ve never needed the word ‘marriage,’ and all it’s done now is get a bunch of bishops hot under the collar. We’ve been pragmatic, not making the mistake they have in the U.S., where the gay lobby has banged on about marriage.”

Civil marriage for same-sex couples became legal in England, Wales and Scotland in 2014 (but not in Northern Ireland).

More. George Will, one of America’s most important conservative (with a libertarian bent) columnists, takes a Cameron-like position when he calls Mike Huckabee’s crusade against same-sex marriage “appalling.” Specifically Huckabee argues that states have the right to nullify rulings by federal courts, including the U.S. Supreme Court.

Furthermore. Via David Frum at The Atlantic: What Republicans Can Learn From British Conservatives:

Their American detractors may grumble, but these other conservatives [center-right parties in the U.K., Canada, Australia and New Zealand] are indeed “real conservatives” … After coming to power in 2010, the Cameron government cut personal and corporate income taxes. It imposed tough new work requirements on physically capable welfare recipients. Government spending as a share of GDP will decline to pre-2008 levels next year. Thanks to Cameron’s reforming education minister, Michael Gove, more than 3,300 charter schools (“academies,” as the British call them) are raising performance standards in some of Britain’s toughest neighborhoods—a 15-fold increase since 2010. Under the prime minister’s leadership, the post office was privatized.

And also:

All have accepted gay equality, with Australia on the verge of a parliamentary vote to permit same-sex marriage. They are parties comfortable with racial inclusion and competitive with ethnic-minority voters….

Sounds like the key to electoral success.

Supreme Arguments

On the morning of April 28, the U.S. Supreme Court heard arguments in Obergefell v. Hodges, which will determine whether (1) same-sex couples have a right to wed in all 50 states, and (2) whether states must recognize same-sex marriage performed in other states.

There will be much analysis and predicting and guessing, until the decision is issued in June. Since no one knows, it’s at best informed speculation.

This was interesting, from attorney Kevin Russell, via Scotusblog:

There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.

But Russell, who has argued 11 merits cases and served as counsel or co-counsel in nearly 50 merits cases before the Supreme Court, also observed:

Kennedy’s relative silence in the second argument may be good evidence that he intends to rule in favor of the couples on the main question — that is, it suggests he will vote to require states to allow same-sex marriages in their own states, which will effectively moot the question of whether they are required to recognize the same-sex marriages performed in other states.

Sexual Orientation Animus or Gender Discrimination?

The Washington Post reported:

[Chief Justice John] Roberts asked a question that neither side had pressed. If a woman wants to marry a man, she can. If a man wants to marry a man, he can’t. Why isn’t that sex discrimination, he wondered.

So perhaps he’s angling for a ruling based on sex discrimination, which might avoid fears of inadvertently opening up marriage to multiple partners. But a question that neither side had pressed?

It hinges on Justice Kennedy, and many remain optimistic he’ll side with the liberals in finding that the 14th Amendment’s equal-protection and due-process guarantees leave no justification for denying marital status to same-sex couples. The fun speculation starts with what if Kennedy is hesitant to go against, in his words, “This definition [that] has been with us for millennia”?

James Taranto, in a column at the Wall Street Journal otherwise fairly unsympathetic to marriage equality, picks up on Chief Justice Roberts query about a ruling based on, in his words, “a straightforward question of sexual discrimination.” Taranto suggests this would, in fact, take care of Justice Sam Alioto’s speculation about opening up marriage, on equal protection grounds, to incestuous and polygamous/polyamorous relationships, noting:

From the premise that men and women are equal before the law, it does not follow that a pair of siblings are the equivalent of a married couple, or that 1+1=4.

If Roberts were to place himself in a position where history would not judge him unkindly, that’s the way he would go.
——
[Added: Lawyer friends tell me that that this has to do with the level of equal-protection scrutiny applied during judicial review. The Supreme Court has held gender discrimination to intermediate scrutiny, a notch below the strict scrutiny standard applied to race. Also, by framing a decision in terms of gender discrimination, the court could avoid a ruling with broader implications about sexual orientation discrimination in employment, housing or other contexts.

Put simply, a ruling that overturns state bans against same-sex marriage because government may not discriminate due to animus regarding a couple’s sexual orientation would have wider reach than a decision that overturns state bans because government can’t discriminate on the basis of gender against individuals who want to marry someone of the same sex. For that reason, it’s not what some activists would prefer, and explains why the gender-discrimination argument wasn’t put before the court—and why some conservatives who see a decision legalizing same-sex marriage as inevitable are pushing for using gender discrimination as the basis. But frankly, if it gives us the freedom to marry, I can live with that.

Also, via the New York Times, Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage. There’s speculation that behind closed doors Roberts may be offering his support to Kennedy and the liberals if they are willing to go along with a decision on narrower gender-discrimination grounds, because a 6-3 decision would be viewed as more legitimate than a 5-4 ruling.]
——
The Wall Street Journal‘s page 1 story picks up on the point where I began this post, that if, again, Justice Kennedy doesn’t swing as far as many expect him to, the likely compromise is to find states must recognize same-sex marriages performed elsewhere:

[Roberts] said it may be “a big step” to find that the 14th Amendment requires all states to perform same sex marriages, but the idea of requiring states to recognize out-of-state marriages under “domestic relations law is pretty straightforward.”

I’m dubious it will come to this “fall back” compromise, but that’s sure looking like the worst case scenario.

And what’s more… Timothy Sandefur parses an Alito absurdity about ancient Greece. And Amy Davidson in the New Yorker on Justice Alito’s Polygamy Perplex.

Post-Marriage Forecast

The New York Times looks at the likely aftermath of a June Supreme Court ruling that there is a constitutional right to same-sex marriage:

Still, once the Supreme Court speaks, in a decision widely expected to make same-sex marriage a national right, the opponents’ anger and energies are likely to focus on a more limited issue, what they call protections for conservative religious officials or vendors who want to avoid involvement in same-sex weddings.

Gerald N. Rosenberg, a political scientist and legal scholar at the University of Chicago, said his former predictions of a wider, lasting backlash to marriage rulings had been overtaken by the “sea change in public opinion.”

Such “opt out” proposals may produce political heat, as recently seen in Indiana and Arkansas, where the governors, under pressure from businesses, felt compelled to weaken so-called religious freedom bills. But they will not impede the ability of gay couples to marry, Mr. Rosenberg said.

And this:

Yet whatever resistance strategies are adopted, many legal and political experts who have studied the impact of divisive Supreme Court rulings in the past, and the trajectory of the same-sex marriage movement, say they do not expect a lasting, powerful backlash of the kind that followed decisions on school desegregation and abortion.

Instead, the experience in states where same-sex marriage has already been legalized suggests that public opposition is likely to wither over time.

“As more couples marry, more people will know people who are married,” said Michael J. Klarman, a legal historian at the Harvard Law School and author of a 2012 book on earlier same-sex marriage rulings. “And those who oppose it will find out that the sky doesn’t fall.”

Assuming that the Supreme Court rules the right way, I think that’s correct. Same-sex marriage is not abortion; it is not the taking of life. There will not be mass mobilizations to pass Ted Cruz’s constitutional amendment.

But the debate over whether independent vendors with religious views opposed to participating in same-sex weddings should be forced by the state to do so (at the behest of angry authoritarians) will continue, and it will be ugly. Think witch hunts.

Confusing the matter is a related but different issue: whether civil servants should be able to opt out, and here I think the answer has to be no. There is a key difference between private, self-employed citizens who don’t want to provide creative services to same-sex weddings, and servants of the state.

While some of my friends on the left seem to think everyone is essentially (or should be) treated as a servant of the state, that’s actually not the American way, and shouldn’t be.

But, on the other hand, if government officials can’t perform their duty to treat all citizens equally, citing their own religious convictions, then they should step aside. Separation of church and state is also the American way.

Just a Matter of Time

More evidence that conservative support for same-sex marriage is growing:

A 2014 Pew poll found that 61 percent of Republicans under 30 support gay marriage.

According to Data Science polling, 64 percent of self-identifying Evangelical Millennials support same-sex marriage.

And the most recent survey of incoming freshman at UCLA found that 44.3 percent of students who considered themselves “far right” believed same-sex couples should have the right to legally marry, while 56.6 percent of “conservatives” believed the same.

Which may be why anti-gay-marriage activist Maggie Gallagher, in her latest missive, sounds like an alienated and bitter self-outcast.

More. She’s not alone among social conservative activists, of course. The Heritage Foundation seems to be getting even more anti-gay. Their latest: My Father Was Gay. Why I Oppose Legalizing Same-Sex Marriage.. This sentence, in quotation marks, apparently can be found nowhere on the Internet except in articles by this author:

Statements like this are lies: “Permitting same-sex couples (now also throuples) access to the designation of marriage will not deprive anyone of any rights.”

Heritage, it seems, is on a roll. Now they’re claiming that same-sex marriage will cause 900,000 abortions. Desperation tactics.

Furthermore. Wisconsin Gov. Scott Walker, a likely GOP presidential contender, may not support same-sex marriage, but he attended the reception when his wife’s cousin was married to her partner. The Walker’ then-19-year-old son, Alex, served as a witness and signed his name to the marriage certificate. Generational change.

Polls and Predictions

New 2016 primary polls by NBC News/Marist College have a surprising finding, reports the Washington Post. The findings show that about half of likely GOP caucus and primary voters in Iowa, New Hampshire and South Carolina said they find opposition to gay marriage either “mostly” or “totally” unacceptable in a candidate. Fifty-two percent of likely Republican primary voters in New Hampshire and South Carolina said opposing gay marriage is either mostly or totally unacceptable, while 47 percent of likely Iowa caucus voters agree.

The findings, however, have some caveats. For instance:

There’s also the possibility that the poll question confused some people. Asking people about gay marriage opposition rather than support for it brings double-negatives into the picture, possibly confusing some poll respondents. And people are more apt to respond in the negative when in doubt. …

You also have to wonder just how much of a deal-breaker gay marriage support is. The poll asked about opposition to gay marriage—not support—so it’s a little harder to suss out just how many people would vote against a candidate who supports gay marriage. We’re guessing it’s still more of a voting issue for those who oppose gay marriage than those who support it— at least on the GOP side.

I think these poll results need to be taken with a grain of salt. But if not now, then sooner than many expect, support for marriage inclusive of same-sex couples will be an accepted conservative stance, as it is in Britain and, albeit to a lesser extent (for now) in Canada, although a religious-traditionalist bloc within the party will remain opposed.

Endgame, with Residual Resistance

There’s going to be a certain amount of last-ditch intransigence to marriage equality, especially in the deep South, as personified by Alabama State Supreme Court Chief Justice Roy Moore, among others. As the New York Times reports, “Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional.”

This smacks of desperation, and a last-gasp effort to incite the base. But marriage equality is not abortion; the freedom to marry does not involve ending the life of an unborn child. Hundreds of thousands will not march on Washington in protest, year after year.

The fact that so many GOP leaders are talking about accepting the appellate rulings (and, by extension, the upcoming Supreme Court decision) and moving on is testament to that. And, as the Huffington Post notes, even Conservatives At Iowa Freedom Summit Would Rather Not Talk About Gay Marriage. Many of them, at any rate. They know it’s over.

Mike Huckabee and and Judge Moore are outliers. It will pass. In the meantime, this is certainly an interesting response.

Potemkin VIle

What are politicians who oppose marriage equality defending any more?

We know what they say they have in mind: the mechanical litany of protecting the right of children to have two biologically related parents; some version of Christian values; the independence of the people’s will against unelected judges; and the right of a state to define family relations. Each of those has some appeal, and some merit.

But Alabama House Speaker Mike Hubbard revealed a gap in the politics that should ease those who are jittery about the coming Supreme Court case. After a federal court last week struck down Alabama’s prohibition on same-sex marriage as unconstitutional, Hubbard said, “It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Amendment.”

Chris Geidner helpfully pointed out that, far from multiple millions, less than 700,000 Alabamians voted for the amendment. And that’s out of a population of 4.8 million.

This does not mean marriage equality is popular in Alabama. But you can’t deny that 4.1 million Alabamians did not weigh in on the sanctity of marriage. A lot of them weren’t registered to vote, a lot probably had other things to do on voting day, and you have to assume that a lot of them just didn’t really give much of a damn about this particular issue.

It’s not unlikely that, if this decision is upheld, either on appeal or as a result of the U.S. Supreme Court’s ruling next June, there will be a certain amount of discontent in Alabama, possibly more than there has been in the 36 other states whose marriage equality bans have been overturned.

But think about the magnitude of the yawn that has greeted those other decisions.

So far, the Supreme Court has only overturned one state ban on same-sex marriage, California’s. Seven million Californians passed that ban (against 6.4 million who opposed it), and the court overturned it two years ago in Hollingsworth v. Perry.

While California is a pretty blue state, it is extraordinarily hard to find any of those seven million voters who, after the court’s decision, took to the streets, stormed the courthouse doors, or even wrote letters to the editor. The decision was met by the ban’s many supporters with a shrug. All of the fear and anxiety and emotional manipulation from one of California’s ugliest initiative campaigns had been utterly forgotten. No hard feelings, who’s providing snacks for the kids’ soccer game Saturday?

And that seems to be what’s happening in the other states where bans have been falling on a weekly basis. Most people are just relieved to be getting done with this.

That might be because equality advocates have had it right from the start: this really doesn’t affect most people’s lives negatively, and the ones whose lives it does affect are positively joyous. The bans were a deeply cynical and politically timed moment in American history designed to exploit the last dying gasps of an ages-old prejudice. That spasm forced the constitutional issue, and it turns out the cynics were right in their own way. That particular form of bigotry was dying, and they timed the bans well.

This last generation of politicians still has some long-tail prejudice to cater to. But I’m feeling confident they’re going to find this snake oil doesn’t dazzle the masses the way it used to.