Prop 8 Ruling Will Be a Political Disaster for Romney and the GOP

The Ninth Circuit Court's ruling against Proposition 8 is political disaster for the Republican Party.

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The federal court ruling that nullifies the California ban on gay marriage will be a financial boon and a political disaster for the Republican Party.

Tuesday the Ninth U.S. Circuit Court of Appeals ruled that Proposition 8, the California ban on gay marriage, was a violation of the "equal protection" clause in the 14th Amendment in the Constitution. The equal protection clause states "nor shall any state deny to any person within its jurisdiction the equal protection of the laws." The court correctly held that Prop 8 denied gay couples the same right to marry that heterosexual couple enjoyed. If the Ninth Circuit's ruling is upheld by the U.S. Supreme Court, there will no longer be marriage apartheid in the United States.

[See a collection of political cartoons on gay marriage.]

There is a decent chance that the Supreme Court will uphold the circuit court's ruling and end the discrimination against gay couples. There are four liberals on the Supreme Court and an equal number of conservatives. The swing Supreme Court vote is Justice Anthony Kennedy. Even though Justice Kennedy is a Reagan appointee, he sometimes sides with the liberal justices. In fact, Anthony sided with the liberals in a majority decision in the landmark gay rights case Lawrence v. Texas in 2003. In Lawrence, the court majority ruled that a Texas law that banned certain types of sexual activities by gay couples but not straight couples was a violation of the 14th Amendment.

The Ninth Circuit Court ruling will create an outcry from the religious right and help Christian conservatives raise a ton of money. But the battle over gay marriage will put social conservatives on the wrong side of public opinion, focus the spotlight on former Gov. Mitt Romney's flip-flops, and distract Republicans from talking about their best issue, the economy.

[Read a U.S. News interview with Supreme Court Justice John Paul Stevens]

A majority of Americans now favor gay marriage. The voters who most strongly support President Barack Obama, young Americans, overwhelmingly favor same sex marriage and these millennials will make up an even bigger part of the electorate than in 2008. The coming GOP obsession against gay marriage will light a spark that will generate higher turnout among young voters who are not as enthusiastic about Barack Obama as they were in 2008.

The battle over gay rights over the next few months will make life even more difficult for Mitt Romney than it is now. When he ran for the U.S. Senate against the late Sen. Ted Kennedy, Romney said he would be even more pro-gay rights than the senator. Now that he is running for the Tea Party nomination, the former liberal and former Bay State governor has become a born again hater. Exit polls in Florida and Nevada demonstrate that Romney has won over right-wingers. But as he has become more popular with very conservative voters, national polls show that he has become less popular with the moderate suburban independents who will pick the next president in November. Romney's defense of gay marriage will move him even further to the right and spotlight his flip-flops on a lot of other issues like healthcare.

  • See a slide show of the members of the Supreme Court.
  • See a collection of political cartoons on Mitt Romney
  • Read Karl Frisch: The Homophobic Doublespeak of Mitt Romney