an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Same-sex marriage, Ken Mehlman, and the race against the clock
Former Republican National Committee Chair Ken Mehlman's decision to come out as gay provides a convenient moment to discuss a problem I've been wresting with in thinking about the prospects for success in Gill (the challenge to DOMA) and Perry v. Schwartzenegger (the challenge to California's Proposition 8 ban on same-sex marriage).
Readers of this blog know that I have been skeptical of federal challenges to state marriage laws at this time, arguing that marriage equality advocates are about 10 years away from a good chance of success in the Supreme Court,and that it is better to try to win victories in state legislatures and state courts and change national public opinion.
The problem is that because of Gill and Perry v. Schwarzenegger, we do not have that luxury anymore. These cases--or others like them--will wend their way through the federal courts. (By the way, the Justice Department, to my knowledge, has not yet decided whether to appeal Gill. It has 60 days from August the 18th.) Here's where Ken Mehlman becomes relevant. Mehlman was the chair of the Bush 2004 presidential campaign, which deliberately used opposition to same-sex marriage--and indeed, moral opposition to homosexuality--as a way of increasing turnout among members of the Republican base. One way of doing this was to work with anti-SSM groups to schedule votes on state constitutional amendments that would prohibit the recognition of same sex marriage. As a result of this strategy, thirteen states passed such amendments during the 2004 election cycle, followed by a dozen or so more in the next four years.
These amendments matter because they complicate the most obvious path toward marriage equality: proceed state by state and get a majority (or more) of states to recognize same-sex marriage. After that occurs, it is much easier for the federal courts and the Supreme Court to consider a challenge to laws banning same sex marriage.
A few states with such constitutional amendments would not be a very serious obstacle. When Brown v. Board of Education was decided in 1954, several states (for example, my home state of Missouri, I believe) had constitutional amendments that outlawed school integration. But most states outside the Deep South had already ended de jure segregation in schools.
The problem is that as a result of the 2004 Bush campaign, a much greater number of states have constitutional amendments that block both ordinary legislation and judicial interpretation of state constitutions. At last count, 29 states had constitutional bans on same sex marriage.
This leaves us with the other path to national marriage equality: combining victories in the 20 or so states without constitutional roadblocks with an overwhelming shift in popular opinion. A recent CNN poll suggests that the United States has just reached the 50% point on support for same-sex marriage. This is excellent news, but we are still far from a general consensus in favor of recognizing same sex marriage. I had assumed that this shift would take at least a decade, hence my gloomy forecast about the ultimate success of the DOMA and Perry litigation in the Supreme Court.
As older voters die and are replaced by newer ones, those percentage of the population supporting same sex marriage--and gay rights generally--will surely increase; nevertheless, generational shifts in populations and attitudes take time. The question is whether they can change quickly enough to make a difference for federal litigation.
Thus, one way of thinking about these federal cases is as a race against the clock: Will public attitudes on same sex marriage change significantly and decisively by the time Gill and Perry, or other cases like them, reach the Supreme Court of the United States? If the shift takes many years, and after the cases reach the Court, the odds of victory are lower; if the shift is sudden and significant, then the odds of victory are higher.
We should think about Mehlman's decision to come out publicly in this light. Mehlman can insist all he wants that he had comparatively little to do with Bush's 2004 anti-gay strategy, but it's hard to credit. In 2004 it was widely acknowledged that, facing a deeply polarized electorate, the party that got more of its partisans out would win the election. Mehlman and Karl Rove wanted to win, and the way they sought to win was to use moral opposition to homosexuality as a lever to get out the vote. Anti-gay initiatives were not the sole reason for Bush's victory in 2004, but the Bush campaign clearly believed they would help. (It would be even sadder if, as some observers have contended, these initiatives had little ultimate effect on Bush's victory margins, because they nevertheless resulted in a wave of anti-same sex marriage amendments.)
Mehlman bears a heavy responsibility for the legal predicament that advocates of marriage equality are now in. At the same time, the fact that a significant figure in the Republican Party has acknowledged that he is gay has considerable social meaning. As important as Ted Olsen's support of gay marriage, which I applaud, it is perhaps even more symbolically important that the campaign manager of the anti-gay 2004 Bush campaign has announced that he himself is gay and now supports marriage equality.
I believe that Mehlman's announcement heralds a sign of things to come. Many people in the Republican Party actually have no real objection to same sex marriage, but dare not say so publicly because they believe that this will undermine their position within the party. The result of statements like Olsen's and Mehlman's is that more and more Republican politicians and political operatives will be willing to publicly announce that they support same-sex marriage, that the Republican Party is a big tent on this issue, and that much as they respect religious conservatives, they do not agree with them.
Because Republicans are likely to be among the last hold-outs against same sex marriage, the quicker this position becomes mainstream in the Republican Party, the quicker it becomes acceptable in the nation as a whole-- and the sooner Barack Obama can give up his farce of repeatedly telling everyone who will listen that he is opposed to same-sex marriage.
Ken Mehlman has a lot to be sorry for. But his decision to come out at this moment may help in the race against the clock. Posted
by JB [link]