In yet another sign that Republicans foresee defeat in the battle over gay marriage, Wisconsin Attorney General J.B. Van Hollen conceded in a recent interview that the state’s constitutional ban on same-sex unions may soon be overturned in court.
Despite emphasizing in a weekend TV interview that he would aggressively defend challenges to the ban, Van Hollen, who will leave office after two terms in January, said that in light of court decisions overturning similar bans across the country, it was likely that the federal and state judges addressing the two different suits against Wisconsin’s law would not side with him.
“I certainly won’t be at all surprised if we lose in our court here as well,” he told WISN anchor Mike Gousha.
Same-sex marriage is now authorized in 18 states and the District of Columbia. Twelve of those states authorized the practice via statute while in six states, same-sex nuptials were mandated by court decision.
In addition, 10 states are currently entangled in legal battles in response to court decisions striking down their bans. Those include some of the country’s most conservative states: Utah, Oklahoma, Kentucky and Texas.
While Republicans have dismissed the rulings as judicial overreach, they have largely backed away from the issue, viewing it as politically impractical in a country that is increasingly in favor of gay rights.
It was only a decade ago that Republicans, led by President George W. Bush, were pushing for an amendment to the U.S. Constitution to define marriage as between a man and a woman.
Even though there was never a realistic chance of passing the amendment, which required two-thirds support in both houses of Congress, Republican strategists saw raising the issue as a powerful way to mobilize social conservatives in support of Republican candidates.
While the fight against gay marriage may have reaped benefits for the GOP in some states, there was strong evidence that the push in Wisconsin harmed Republicans. Even though the Badger State ban passed by 19 percentage points in 2006, it also likely played an important role in getting young, Democratically-leaning voters to the polls in a non-presidential election year when youth turnout is typically low.
Ever since the ban, Republicans in state government have been content to leave the battle over gay rights to the courts. Even though Gov. Scott Walker has said he believes the domestic partner registry that Democrats approved in 2009 is unconstitutional, he and his allies in the Legislature have made no move during their three years in power to kill it, instead allowing social conservative groups to lead a lengthy battle in court over the issue.
In 2011, Dane County Circuit Court Judge Daniel Moeser ruled that the registry does not violate the state Constitution, finding that the rights recognized for same-sex couples does not constitute a “legal status identical or substantially similar to marriage,” which the 2006 amendment proscribed.
The following year, an appeals court unanimously upheld Moeser’s ruling. The state Supreme Court heard a final appeal to the case last year and is expected to deliver a ruling in the coming months.