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Whither Republican saber-rattling on DOMA and Prop 8 at the Supreme Court?

DOMA trials Prop 8 trial Supreme Court

By Jacob Combs

POLITICO has a big, front-page piece up this morning on the deafening sound heard from Republican leadership in response to the Supreme Court’s decision to consider Prop 8 and DOMA: the deafening sound of silence, that is.  As POLITICO’s Josh Gerstein points out, after the Court’s announcement on Friday, quite literally no single member of the Republican leadership issued a statement commenting on the news.

The most remarkable silence, of course, is the one from House Republicans, who have committed a serious chunk of (it must be said: tax-payer) money to defending the law in court after President Obama and Attorney General Eric Holder announced in February 2011 that the administration believes DOMA is unconstitutional and would no longer advocate for the law in the several legal challenges it was facing.

The Huffington Post‘s Jennifer Bendery reported in October that the House’s Bipartisan Legal Advisory Group (BLAG), which is defending the law, had only a little bit more than $50,000 left of the $1.5 million the House had allotted to DOMA’s defense; as we reported yesterday on Prop 8 Trial Tracker, a California district court rejected a request made by BLAG to attend a hearing in the military DOMA case Cooper-Harris v. USA by telephone in order to “conserve litigation resources.”

This is a story that’s been brewing since the Court’s Friday announcement, and one I began to notice Sunday morning while watching ABC’s This Week with George Stephanopoulos.  The roundtable of political pundits this week included George Will, Paul Krugman, Matthew Dowd, James Carville and Mary Matalin, and none of them–liberal or conservative–spoke out against marriage equality.

George Will, who is certainly no leftist, won the quotation of the segment award with this: “Quite literally, the opposition to gay marriage is dying. It’s old people.”  Matthew Dowd, who served as the chief strategist for George W. Bush’s 2004 presidential campaign, noted that “the consensus has already emerged on this issue” and said the real issue in the Court’s announcement is whether the Court is “going to catch up and follow that wind of the park or get ahead of it or put a block in the path of it.”

Even Mary Matalin, an influential Republican strategist, said that support for marriage equality has continued to grow “because Americans have common sense”–although she did turn this into a somewhat tangential argument about the dangers of children being born out of wedlock.  And George Stephanopoulos himself said at the end of the segment, “It’s hard to see how the Supreme Court is going to allow the Defense of Marriage Act to continue to deny those benefits [denied to same-sex couples]great.”

The near unanimity of the roundtable on this issue demonstrates just how significant the marriage equality movement’s advances in 2012 have been.  This Week’s panel, especially Matalin and Krugman, disagreed strongly on the fiscal cliff, with Matalin calling Krugman a “polemicist” at one point.  But when it came to equal marriage rights, they were essentially all on the same page–and because of that, it’s not surprising that the political leaders of the Republican establishment have decided to lay low following the Court’s announcement.

It’s not just supporters of marriage equality that have been noticing this development.  Gerstein’s POLITICO piece also quoted Maggie Gallagher, of the anti-gay National Organization for Marriage, who said, “I’m personally grateful to Speaker Boehner for being willing to defend the law, but it’s clear GOP elites don’t want to talk about it and want to keep it as quiet as possible.  That’s so obvious, I don’t see any point in pretending otherwise.”

As Jeremy Hooper pointed out at Good As You, Gallagher (or a commenter pretending to be her), wrote the following in a comment on the website of Family Scholars, which bills itself as an “online site for engagement for the Center for Marriage and Families at the Institute for American Values (Hooper has reached out to Gallagher to confirm the comments are indeed hers):

“To strike down Prop 8 on ‘narrow grounds’ proposed by the 9th Circuit is so intellectually dishonest that if that is what the Court wished to do I think they would have refused to hear the case.

“I think Kennedy will overturn DOMA (perhaps joined by Roberts) and then uphold the right of states to refuse to accept gay marriage (i.e. uphold Prop 8).

“The victories this November for gay marriage at the polls make that outcome more likely. Justice Kennedy will likely see it as not at all unlikely voters will overturn Prop 8 soon and see that as a much better outcome than constitutionalizing gay marriage.”

This radio silence on the behalf of the Republican party’s major figures is a big story, especially now that POLITICO, which is often well-attuned to the narrative currents of the Washington establishment, has given it such close attention.  Of course, should the Supreme Court decide in the end to uphold Prop 8 (or DOMA, which seems less likely), the House Republican leadership and anti-gay advocates like Maggie Gallagher will no doubt happily break their current silence to trumpet the news.

In the meantime though, the right’s relatively muted response to the Supreme Court’s decision (and, indeed, to the great progress in marriage equality we saw on November 6, speaks volumes.  The marriage equality landscape has fundamentally changed this year in a way that can never be undone.  A sitting president (and his party) supported the freedom to marry and won a convincing victory in an election that was supposed to be razor-thin.  Four states voted in favor of equality, with three of them making history in doing so.

The very fact that the Supreme Court is considering legal challenges to DOMA and Prop 8 (not to mention the fact that there is a great degree of unanimity that DOMA is unlikely to survive to the end of 2013) is a remarkable demonstration of progress.  None of us may know what the nine justices are really thinking, but their rulings will serve as yet another point of view of a now-dramatically reshaped conversation on LGBT equality.


  • 1. MOMMIE DAMMIT  |  December 11, 2012 at 10:18 am

    Scalia drawing parallel between homosexuality and murders on Monday at Princeton.

    We know how he will vote in these cases.
    There is a petition to demand that Scalia recuse himself from the upcoming Prop 8 and DOMA cases.
    Please sign the petition and spread the word.
    We need at least 25,000 signatures by Jan 11, 2013.

  • 2. MOMMIE DAMMIT  |  December 11, 2012 at 10:21 am

    Scalia drawing parallel between homosexuality and murders on Monday at Princeton.

  • 3. Sagesse  |  December 11, 2012 at 10:31 am

    This article, posted at 1:15 am, has 12,716 comments, with 165 pending.

  • 4. Sagesse  |  December 11, 2012 at 10:40 am

    The answer to Scalia, which Nathaniel Frank put so well in the Quick Hit posted yesterday, is that there are moral rules against acts that do harm… such as murder or theft, which society should legislate against, and there are moral 'rules' against actions that a particular group finds offensive, but which do no one any harm. Same sex orientation and intimate relationships do no one any harm.

    Is Homosexuality a Sin?

  • 5. The Morning Pride: Decemb&hellip  |  December 12, 2012 at 5:56 am

    […] Republicans have been relatively silent about the Supreme Court’s decision to take up the Defense of Marriage […]

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