By Rich Lowry
The Hendricks County Flyer
Fri Apr 05, 2013, 03:51 PM EDT
Supporters of gay marriage always cite the shifting polls, as if they are relevant to a deliberation over whether gay marriage is mandated by the Constitution. The Republican supporters of gay marriage are no better than the liberals. On MSNBC's "Morning Joe," former McCain campaign manager Steve Schmidt, a signatory on a Republican pro-gay marriage brief, confidently predicted that a gay-marriage referendum would pass in California "in a presidential election year." Can't we wait to have the court impose gay marriage until we're certain a referendum would pass in an off-year election too?
His former McCain campaign colleague and fellow signatory Nicolle Wallace appeared on "Fox News Sunday." "More than 60 percent of all Americans, everyone, supports marriage equality," she said. Wallace was apparently referring to an ABC News/Washington Post poll that showed 58 percent support for gay marriage, which technically is not more, but less than 60 percent.
This happens to be the best result in any of the recent polls for gay marriage. Her point would have been considerably attenuated if she had said, "The most recent Pew poll has 49-44 percent favor gay marriage and the Fox poll 49-46 percent support, slim pluralities that mean ... the court ... must ... act ... now."
The most telling moment in the argument over Proposition 8 prohibiting the official recognition of gay marriage in California came when Justice Antonin Scalia asked pro-gay-marriage lawyer Ted Olson when it became unconstitutional not to recognize gay marriage. Olson couldn't answer without appearing ridiculous, either by saying our marriage laws have been unconstitutional since the passage of the 14th Amendment in 1868 or by picking some arbitrary contemporary date.
Olson responded that it became unconstitutional not to officially recognize gay marriages as part of "an evolutionary cycle." As a matter of constitutional law, this answer is completely inadequate. Constitutional rights don't evolve with public opinion. As a reply to the political question of when gay marriage began to get traction, it is apt. In this context, you can indeed just look at the polls.
But they have nothing to do with the Supreme Court and everything to do with the political process, even if its supporters would prefer not to be bothered.
(c) 2013 by King Features Syndicate
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