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Why Supreme Court's gay marriage ruling won't be like Roe v. Wade

Some saw Justice Ginsburg's recent questioning of the Supreme Court's Roe v. Wade decision on abortion as a sign of how it might rule on gay marriage. But unlike with Roe, if the court rules in favor of same-sex marriage, it would be in line with the democratic process and public opinion.

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Unlike with Roe, the consideration of marriage rights is not a new frontier to the democratic process, public opinion, or most important – for the court. As far back as 1888 and as late as 2003, the high court has ruled on marriage rights in 14 separate decisions.

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The evolution of public opinion concerning the right to marry for gays and lesbians, too, follows a divergent track from abortion. Whereas the public sentiment on abortion has remained largely static since the Roe ruling 40 years ago, an uncommonly decisive shift in attitudes in recent years concerning gay marriage has radically reorganized the political landscape.

The support for same-sex marriage recently reached a record high, at 58 percent in a March survey by ABC News and The Washington Post. That number represents a 26-percentage-point growth over the span of just nine years. And in those 12 states where same-sex marriage is already legal, the support trend line is even more pronounced. In the few months since the Supreme Court heard oral arguments on gay marriage, three states changed their laws to afford equal rights and protections for gay marriage.

Even among socially conservative voter strata there exists compelling demographic evidence that the gay marriage coalition is a uniquely enduring one and unlikely to fracture in the years ahead. While polls show that the majority of Evangelical Christians still oppose same-sex marriage, that opposition has lessened over the last two decades. And other polls show a majority of young evangelicals (those under 35) now support same-sex marriage.

The public also firmly supports a federal solution to the gay marriage question. Fifty-six percent, as clocked by Quinnipiac in April, believe the legality of same-sex marriage should be based on the US Constitution rather than a dizzying patchwork of competing state laws.

Potential judgments by the court in favor of same-sex marriage would not “move too far, too fast,” as Justice Ginsburg recently mused of the unrelated Roe ruling. Nor would the ruling somehow short-circuit the political process.

Of course, only the justices know how they will rule, and as with last year's decision on the Affordable Care Act, they can always surprise. But if the court rules in favor of same-sex marriage, it would be in line with the democratic process and trend of public opinion.

James Richardson, a conservative communications strategist, was formerly a spokesman and adviser to the Republican National Committee and Governors Haley Barbour (R) of Mississippi and Jon Huntsman (R) of Utah.


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