Gay marriage bans crumbling quickly

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Gay marriage bans are crumbling around the country while the outcry from opponents dwindles on the national stage.

Same sex marriage bans falling in court have become almost routine. Two, in Oregon and Pennsylvania, were voided just last week. Since December, there have been decisions striking down bans almost once every two weeks on average. 

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Following the Supreme Court’s decision last year striking down a section of the Defense of Marriage Act, gay marriage supporters have a perfect record. Since June, federal courts in Utah, Oklahoma, Virginia, Texas, Michigan, Idaho, Oregon and Pennsylvania invalidated gay marriage bans in their states.

In addition to a drumbeat of court decisions, the fight is made even harder for opponents by a new political environment, shaped by rapidly changing public opinion, where outspoken opposition to gay marriage is not seen as advantageous.

A Gallup poll this month found that support for gay marriage is at an all-time high, at 55 percent, rising 15 percentage points in just five years. 

Gay marriage rights’ newfound popularity has enabled eleven states to legalize gay marriage either through their legislature or ballot referendums. Just five years ago, no state had ever done that. 

Now, GOP officials are being forced to adapt to this new political reality. Two years ago, even the official position of President Obama, Hillary Clinton, and many other top Democrats was opposition to gay marriage. As the pressure spreads, Republicans are facing a wave of acceptance and new rights.   

“They’re seeing that the tide is changing; public opinion is changing,” said Christine Todd Whitman, a Republican former governor of New Jersey who signed a brief to the Supreme Court with 130 other prominent Republicans last year supporting gay marriage. “The courts are going to do it and we're just not going to talk about it or fight it. From a political point of view, that’s an easy out.”

Asked if Republicans in Senate races this year will be making opposition to gay marriage an issue, a spokeswoman for the National Republican Senatorial Committee declined to comment. 

But other GOP operatives say candidates are sensitive to the shift in public opinion and know opposition isn’t the boost it once was. 

“I think Republican candidates are largely going silent on the issue of marriage equity, and that's a sea change from recent years in which the issue was used as an offensive weapon,” Mark McKinnon, a Republican media advisor who worked on both of George W. Bush’s campaigns, and who also signed the brief, wrote in an email. 

Republican Pennsylvania Gov. Tom Corbett, arguably the most vulnerable GOP governor this year, decided not to appeal the ruling last week allowing gay marriage in his state, saying an appeal was unlikely to succeed.

Similarly, New Jersey Gov. Chris Christie (R) decided not to appeal a state court’s ruling allowing gay marriage there last year.

At the time, Christie was seeking reelection in a blue state. Now a potential 2016 presidential contender, he has plenty of company among other prospective GOP White House candidates in softening their gay marriage rhetoric.

“I think that the Republican Party, in order to get bigger, will have to agree to disagree on social issues," Sen. Rand Paul (R-Ky.) told vocativ.com in March.

Former Florida Gov. Jeb Bush told Charlie Rose in 2012 that loving, gay couples “should be held up as examples.”

The shifting views are indicative of a generational shift that isn’t going to subside. A February Pew poll found that 61 percent of Republicans between the ages of 18 and 29 support gay marriage.

But opponents are still fighting hard. “We’re not going away,” said Brian Brown, president of the National Organization for Marriage, a group that opposes gay marriage. “We've fought on every front.” 

Brown acknowledged though that Republicans could be speaking out more than they are. 

“Of course Republicans should be standing up more for traditional marriage,” he argued. 

While the trajectory of court decisions and public opinion suggests gay marriage rights will spread, there is still the question of what the Supreme Court will do, and when.

The string of federal court decisions striking down bans is now being appealed in circuit courts across the country, but the Supreme Court is all but certain to hear an appeal of one of those decisions eventually. Still, the outstanding question is how the country’s highest court will rule. 

“I think they will decide in favor of [supporters of gay marriage],” predicted Yale Law School professor William Eskridge.  “The big question is going to be how broadly they rule.”

Eskridge said there could be a middle ground where state laws that give some recognition to gay couples, but stop short of full marriage rights, would be allowed to stand.

“I think they will want very much to avoid having to decide the question, but they might not be able to,” said Andrew Koppelman, a professor at Northwestern University Law School. 

Changing public opinion and the eleven states that have permitted gay marriage without courts mean that the Supreme Court is not the only way for the whole country to get marriage rights, at least eventually.

While most Republican officials still officially oppose gay marriage, Sen. Rob Portman (Ohio), on the short list for the vice presidential nomination in 2012, announced last year that he supported it after his son came out to him as gay.

“When Rob Portman said he was fine with same-sex marriage because of his son, that was exactly how we got the bill passed in Vermont 14 years ago,” said Howard Dean (D), who was governor of Vermont when it became the first state to allow civil unions for gay people, in 2000.

That move was groundbreaking at the time, but it was eventually surpassed by states making full marriage for gay people legal. Dean thinks the progress for gay rights will continue.

“I do think this is inevitable,” he said.