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Winning After Losing on Gay Marriage

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

As a lawyer, I sometimes have to deliver news that clients don’t want to hear. Here’s some for conservatives. The gay marriage fight is over. It is here to stay, and conservatives – whether for it, against it or just tired of hearing about it – need to coolly and dispassionately figure out just how we are going to win going forward.


This is not a judgment about its pros and cons. We’re past that. None of it matters anymore. This is about dealing with reality. Whether the fight ends with a Constitution-twisting Supreme Court ruling or after years or decades as the states adopt it one by one, it’s a done deal. And even if you aren’t yet ready to accept that it’s lost you still need to prepare for that contingency.

The question is, “What do we conservatives do next?”

Well, we don’t get depressed if we opposed it, and if we didn’t we don’t disrespect our social conservative allies over it. We get ready for the next battle, together. The amnesty fight is coming, and we need to be ready. Remember that if we don’t fight on for conservatism, President Obama and his band of liberal hypocrite buddies win.

On other issues, we conservatives are winning. We are winning on life. We are winning on guns. We are winning on Obamacare. We are winning on liberty, with the chance to expand our base into groups that right now view conservatives with suspicion by fighting government overreach. And, rightly or wrongly, a resolution on the same sex marriage issue is going to make some of that easier. We need to play the hand we’re dealt to the hilt.

It’s fair to ask why I assess this fight as lost. Understand that an objective assessment of the situation is not some sort of “surrender,” or “rolling over” or any kind of capitulation. Maybe my experience as a lawyer (and as a soldier) got me used to dealing with reality as I find it, not as I might wish it to be. You assess the situation, your resources, your opponents, and you make a cold calculation as to what’s most likely to happen next. Here’s mine.


Don’t discount the Supreme Court’s liberal wing’s willingness to impose its Ivy League values on flyover America. For the traditional marriage side, the SCOTUS cases’ best case looks like a punt. But regardless, while same sex marriage has lost in many states, it has started to win with regularity in others in the proper venues – elections and legislatures. Unelected judges imposing it create backlashes – look at California’s Proposition 8 – but the people or their representatives doing it give it legitimacy.

Polling shows the American people are shifting substantially on the issue. That’s reality, and many of those shifting people are conservatives. Most young people, including most conservative young people, favor it. Hell, Dick Cheney supports it. There is no coming majority that will someday reverse course, and there are no states that will ever undo gay marriage after creating it. It ain’t happening.

There are several reasons. One is the inherent kindness, independence and practicality of Americans – traits conservatives rightly celebrate. Americans dislike harshness, and it is tough to look at good people and tell them “No, you cannot have this thing we feel is central to a happy life.” Americans also – correctly – tend to adopt a “live and let live” attitude. They don’t feel compelled to regulate whether you can guzzle Big Gulps, pack an M4, or marry another dude as long as you leave them alone.


There’s also the practical effect of what Americans have observed firsthand. The argument that gay marriage will destroy traditional marriage is very tough to make when Americans have seen gays getting married for a while and…nothing happened. The military experienced a microcosm of that phenomenon with “Don’t Ask, Don’t Tell.” It got repealed and … pretty much nothing happened. Moreover, it’s obvious that gays would have to work overtime to compete with heterosexuals at screwing up the institution of marriage.

By the way, South Carolina GOP voters, if you voted for Appalachian hiker and future MSM “The GOP Are Weirdoes and Hypocrites” poster child Mark Sanford in the recent primary, you’re not allowed to ever again speak about the sanctity of marriage.

Just as critically, popular culture has normalized gay Americans through movies and television; this, in turn, has led more gay people to come out in everyday life as friends, family and co-workers. That’s huge.

When Rob Portman announced his change of heart based on his son’s coming out, my friend and fellow Townhall and Breitbart writer Ben Shapiro, later joined by the great Dennis Prager, correctly observed that was a terrible intellectual argument. They were right – it’s intellectually incoherent. Wrong doesn’t become right just because your friend does it.

But I am a trial lawyer, and it’s the greatest jury argument ever. It may not be logical or rational, but personal experience is damned effective at changing minds – even conservative ones.


So, regardless of whether people like it or not, the die is cast. It’s happening. So we need to decide as conservatives, whether we like it, loathe it or are just exhausted by it, what we do next.

Let’s assess the situation. Let’s see what we can do with the new reality. Let’s look for opportunities.

Same sex marriage going off the table eliminates an artificial barrier to millennials who might otherwise accept key tenets of conservatism. There is a growing, as yet untapped, groundswell against the kind of government overreach exemplified by Obamacare, drones, gun grabbing, intellectual property thuggery and general nanny statism that conservatives share with young, tech-savvy voters. Like it or not, as long as gay marriage remains unsettled, many will not even look at conservatism even though they are remarkably supportive of many of our positions.

The liberals want gay marriage as a wedge issue to drive conservatives apart and to marginalize them from the rest of America. Without it to beat conservatives with, they have to focus on other issues – and there aren’t many issues where they look good. Remember how the GOP busted Democrat chops on crime in the 1960s right up until Bill Clinton got the liberals to stop excusing criminality in the 1990s? Losing the crime issue was a huge blow to the GOP; losing gay marriage will be one to the liberals.


What’s key is not to whine, to not give up, not to be like the pouty libertarians who refused to show up last November and ensured four more years of the least libertarian guy to ever occupy the Oval office. When Mike Huckabee spouted off about evangelicals ditching the GOP if it lost the fight on gay marriage, Obama and his crew probably clinked champagne flutes. Social conservatives, do you really want the liberals unrestrained and unchecked because they retook the House in 2014? Don’t imagine they’ll ever leave you alone, unmolested and free.

You don’t win every battle. Sometimes you get hammered and it hurts. Then you come back. In February 1943, Americans got their behinds kicked by the Nazis at Kasserine Pass. In December 1944, the Allies gutted the remainder of the German war machine in the West during the Battle of the Bulge. Lose today, but learn from it and win tomorrow.

Social conservatives and the more libertarian Constitutional conservatives must stick together or they will lose it all. Libertarian-oriented conservatives, this is the time to reach out to social conservatives. They are invaluable allies and their views deserve respect even if yours differ somewhat. They especially need support in the battle for ensuring religious liberty and freedom of conscience in the wake of the dramatic changes the culture is undergoing. That’s something we all can and must defend – and if we do, we’ll win.


This is when steadfastness matters. This is when we can’t allow ourselves to be demoralized. The fight for this country is more than just one battle that didn’t end the way many people hoped.

Here’s my advice as a lawyer and a conservative. Think about what Obama and his liberal pals would want you to do right now. Then do the opposite.

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