The openly-gay Mehlman was discussing Sen. Rob Portman's son Will and the plaintiff in United States v. Windsor, the Supreme Court case that is now being considered on the constitutionality of the Defense of Marriage Act. The point Mehlman was getting across is that as people's stories become more personal - as Portman's was - public opinion shifts.Mehlman cited a poll by Pew stating that 14% of Americans have changed their minds about same-sex marriage - and that one-third of them did it because they know someone who is gay. "What this conversation has done," Mehlman said, "is that a whole lot more folks have come out. It used to be a concept about 'those people.' Now it's a real conversation about 'my people.'"
This was a critical point in yesterday's Supreme Court arguments in Hollingsworth v. Perry on the constitutionality of California's Proposition 8. Justice Scalia was questioning plaintiff lawyer Ted Olson - a conservative and former Bush Administration official in the Department of Justice - on whether or not it's society's "evolving standards" that determine constitutionality. Olson's answer was not exactly powerful.
JUSTICE SCALIA: I’m curious, when - when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .
MR. OLSON: It was constitutional when we -as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
A broad, sweeping decision in Hollingsworth has the potential to legalize gay marriage in every state nationwide. That's contrasted with the case argued on Wednesday, Windsor, where it would be surprising if the Court did more than strike down DoMA on federalism grounds. A victory for proponents of same-sex marriage in Windsor would mean that the federal government would recognize and grant legal benefits to same-sex couples only who have been married and reside in the states that recognize same-sex marriage.
David Frum, another self-identified conservative, pointed yesterday to his apologia for formerly holding anti-gay marriage views:
I was a strong opponent of same-sex marriage. Fourteen years ago, Andrew Sullivan and I forcefully debated the issue at length online (at a time when online debate was a brand new thing).
Yet I find myself strangely untroubled by New York state's vote to authorize same-sex marriage -- a vote that probably signals that most of "blue" states will follow within the next 10 years.
I don't think I'm alone in my reaction either. Most conservatives have reacted with calm -- if not outright approval -- to New York's dramatic decision.
The short answer is that the case against same-sex marriage has been tested against reality. The case has not passed its test.
Since 1997, same-sex marriage has evolved from talk to fact.
Traditional marriage isn’t dead for DC conservatives, however. The National Organization for Marriage held a rally for traditional marriage on Tuesday to show they won’t go down silently. NOM claimed more than 10,000 activists rallied down the mall and cheered for speeches by both prominent traditional marriage advocates and ordinary citizens.
NOM president Brian Brown pushed back against “media hype”: “For all the media hype and confusion, our numbers today show that the American people are strongly pro-marriage and pro-marriage Americans aren't going anywhere.”
Mehlman pitches it a different way. Gay marriage is no longer an election-losing issue for Mehlman, who cited the statistic that, of over two hundred elected Republicans who have come out in favor of same-sex marriage, only three of them have lost their office specifically on that issue. At that rate, Mehlman argues, the electoral benefits of same-sex marriage outweigh the downsides for Republicans.
I spoke with Francesca Chambers, editor of Red Alert Politics, on how the two court cases might shake out and how they could affect the conservative movement: