Portman’s Switch: Can Shifting Opinions Sway the Supreme Court?

Socially conservative Sen. Rob Portman’s dramatic announcement
on Thursday evening that he supports same-sex marriage — a switch motivated
by learning, two years ago, that his son is gay — is once again proof of what
is working in favor of the LGBT movement: Timing and tone.

The timing is really fortunate, coming less than two weeks
before the Supreme Court will take up the constitutionality of Proposition 8,
California’s ban on same-sex marriage, and the Defense of Marriage Act, which
limits the federal benefits to gay couples. While Portman’s announcement in and
of itself may not immediately sway others in his party, it only adds to the perception
and perhaps even demographic reality of inevitability. “There is no question
where this country is headed on marriage equality and it is headed there fast,”
Human Rights Campaign president Chad Griffin said today on MSNBC’s “Andrea
Mitchell Reports.” Marriage equality activists are by no means assured that the
Supreme Court will decide in their favor, or even decide at all.

The partisan composition of the court has not changed since
the Prop 8 suit was filed, almost four years ago, but public opinion has. This
is where organizations like Freedom to Marry, the American Foundation for Equal
Rights, the Human Rights Campaign and other groups have been so successful,
illuminating this shift in the spectrum of amicus briefs filed in the cases and
in the publicity leading up to the arguments. If there’s worry among the
justices in getting ahead of history, the message is that there’s safety in knowing
where it is headed.

According to a spokesman for HRC, Portman’s announcement was
not coordinated with their group, or any other that he knew of. The upcoming
oral arguments were part of his decision to announce his new position. “I
thought it was the right time to let folks know where I stand so there’s no
confusion, so I would be clear about it,” he told CNN’s Dana Bash.
Nevertheless, what’s not getting talked about as much as his switch is that he’s
not keen on the idea of judicial intervention, and argues that it should be
left to the states. “An expansive court ruling would run the risk of deepening
divisions rather than resolving them,” he wrote in an op-ed today in the
Columbus Post Dispatch
. In fact, the most powerful argument that supporters of
Prop 8 probably have before the court is that it is merely the will of the

The court cases, and the public campaigns around them, as
well as a cultural shift toward “Modern Family” and “The New Normal,”
undoubtedly have helped blur the partisan boundaries around marriage equality. That
may be the dividend of the legal battle, no matter how the court decides. Portman’s
op-ed stirred criticism in social media, where commentators have chided him for
switching sides only when it got personal, but he wasn’t speaking to that
audience, but to the “family values” social conservatives like himself. “Ultimately,
it came down to the Bible’s overarching themes of love and compassion and my
belief that we are all children of God,” he wrote, framing it on the same religious
terms that those who want to keep marriage between  a man and a woman. He may not have changed
minds, be he’s helped give new dimension to the debate.



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