The wedge turns: Republicans now gun shy on gay marriage

by on February 25, 2011  •  In Congress, DoMA, Marriage

The NY Times this morning makes it official that the political tide for cheap anti-gay political attacks is ebbing, with an article (read it after the jump) on the astonishing degree of silence from the Republican establishment in reaction to the Attorney General's announcement that the Justice Department will no longer defend the constitutionality of DoMA.

The Times article concentrates on reactions, or the lack thereof, from likely Republican presidential nominees, but the let's-just-think-about-cutting-spending response from Republicans in Congress is much more important because Congress actually has some authority to respond to the Justice Department decision. Each chamber of Congress can determine independently whether it will seek to intervene in the pending lawsuits to defend DoMA as constitutional.

Consider the statement issued by Speaker Boehner:

While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.

The statement gave no indication of whether the Speaker will ask the General Counsel of the House to actively defend the law. Since the Dems control the Senate, as a practical matter it would be only the House that can exercise an option to ask the courts to allow it as a body to intervene as a defendant. [Both chambers have their own independent counsel offices. The General Counsel of the House has authority under 2 U.S. Code 130f to "provide legal assistance and representation to the House…" I will write more about these possibilities in the DoMA litigation in coming days.] 

Individual members can seek to intervene, as Rep. Lamar Smith already has in the Gill case, arguing that the Justice Department was not defending DoMA strongly enough. But if only individual members of Congress seek to intervene, that will simply add to the marginalization of arguments in support of DoMA. The courts will be hard pressed to sustain a statute repudiated by the Executive Branch and effectively abandoned by Congress.

On the technical jurisdictional issues, it is unclear whether parties other than DoJ would have standing to appeal a ruling that the law is unconstitutional (shades of Perry). However, here, unlike in Perry, DoJ seems to be saying that it will seek review of decisions that the law is invalid in order to eliminate the possibility of a standing question such as has arisen in the Prop 8 case.

All of this indicates to me that the wedge has turned, and in a stunningly short period of time. Seven years ago, Republicans rolled through the states with constitutional amendments banning same-sex marriage (and it will be a while before those get dislodged). Gay marriage as an issue was no-lose for them and no-win for the Dems. Now it has become an "oh no, let's avoid" issue as much for Republicans as for Dems.

We saw the beginnings of this crack emerge with the brouhaha over the C-PAC conference just a few weeks ago. I wrote then that "we may look back on this in a few years and see it as watershed marking the beginning of the end of the coalition of economic and social conservatives in the Republican Party." Whatever else happens, this is going to be fun to watch.

From the NYTimes:

President Obama’s decision to abandon his legal support for the Defense of Marriage Act has generated only mild rebukes from the Republicans hoping to succeed him in 2012, evidence of a shifting political climate in which social issues are being crowded out by economic concerns.

The Justice Department announced on Wednesday that after two years of defending the law — hailed by proponents in 1996 as an cornerstone in the protection of traditional values — the president and his attorney general have concluded it is unconstitutional.

In the hours that followed, Sarah Palin’s Facebook site was silent. Mitt Romney, the former governor of Massachusetts, was close-mouthed. Tim Pawlenty, the former governor of Minnesota, released a Web video — on the labor union protests in Wisconsin — and waited a day before issuing a marriage statement saying he was “disappointed.”

Others, like Newt Gingrich, the former House speaker, and Haley Barbour, the governor of Mississippi, took their time weighing in, and then did so only in the most tepid terms. “The Justice Department is supposed to defend our laws,” Mr. Barbour said.

Asked if Mitch Daniels, the Republican governor of Indiana and a possible presidential candidate, had commented on the marriage decision, a spokeswoman said that he “hasn’t, and with other things we have going on here right now, he has no plans.”

The sharpest reaction came from Mike Huckabee, the former Arkansas governor, in an interview here during a stop to promote his new book, who called the administration’s decision “utterly inexplicable.”

A few years ago, the president’s decision might have set off an intense national debate about gay rights. But the Republicans’ reserved response this week suggests that Mr. Obama may suffer little political damage as he evolves from what many gay rights leaders saw as a lackluster defender of their causes into a far more aggressive advocate.

“The wedge has lost its edge,” said Mark McKinnon, a Republican strategist who worked for President George W. Bush during his 2004 campaign, when gay marriage ballot measures in a dozen states helped turn out conservative voters.

Mr. Obama’s move provoked some outrage, especially among evangelical Christians and conservative groups like the Family Research Council. In a statementWednesday, Tony Perkins, president of the council, condemned the president’s decision as pandering.

But Republican strategists and gay rights activists said on Thursday that the issue’s power as a political tool for Republican candidates is diminishing. While surveys suggest that Americans are evenly divided on whether the federal government should recognize gay marriages, opposition has fallen from nearly 70 percentin 1996.

Prominent Republicans like Dick Cheney, the former vice president, and Barbara Bush, daughter of the former president, have defended the right of gays to marry. And Mr. Obama has been emboldened by the largely positive response to his recent, and successful, push for Congress to repeal “don’t ask, don’t tell,” the military’s ban on gays serving openly.

At the same time, the rise of the Tea Party movement, and the success that Republicans had last year in attacking Democratic candidates on economic issues, has pushed the debate over abortion and gay rights to the back burner.

“I don’t think this is the issue that it once was,” said John Feehery, a Republican strategist. “I think that the economic issues are so big that this one pales in comparison.”

In his first two years in office, Mr. Obama drew criticism from gay rights advocates who thought he was dragging his feet on their issues. Those same advocates see the shift as evidence that with an eye on the 2012 campaign, the president has calculated that the benefits of responding to his base outweigh the risks of upsetting conservatives who wouldn’t be voting for him anyway.

Among them is John Aravosis, the founder of, who in a 2009 blog post called the administration’s first legal brief in a Defense of Marriage Act case “despicable” and “homophobic.” Mr. Aravosis said on Thursday he is “much happier” with Mr. Obama, adding: “I think the gay community got to him. I’m not convinced we got to his heart, but I think we got to his political head.”

Others, like Kerry Eleveld, editor of, a new Web site, say Mr. Obama appears to be evaluating the politics of gay rights issues differently since the positive response to the don’t ask, don’t tell repeal from people on the political left, many of whom have criticized him over issues like health care, climate changeand immigration.

“He got this big bump from it in terms of the progressive base, and didn’t get a whole lot of heat, and I think that has given him a little more heart in feeling like L.G.B.T. issues aren’t as toxic as a lot of people have been painting them for the past 20 years,” she said.

While Mr. Obama has changed his legal position on the Defense of Marriage Act, his personal views on same-sex marriage — he opposes it, but favors civil unions — have not changed, the White House says.

A big question is whether they will. Mr. Obama has said his views are “evolving,” and some expect he will announce his support for same-sex marriage as he campaigns for re-election. But that could complicate Mr. Obama’s efforts to appeal beyond his liberal base.

“It’s still part of Obama’s record now,” said Kevin Madden, a Republican strategist, who has advised Mr. Romney. “It’s one where it looks like he’s changing his position.”



2 Responses to The wedge turns: Republicans now gun shy on gay marriage

  1. RWG February 25, 2011 at 1:00 PM

    If the GOP House decides to defend in the 1st Circuit, can they seek any significant delay in the proceedings, claiming they need time to mount an effective defense?

  2. Nan Hunter February 25, 2011 at 2:06 PM

    Yes, they would probably ask for a month or so in which to file a brief, but since this is in the appellate court and not the trial court, there should be no discovery or other complex time-consuming maneuvers to derail the case.

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