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Gay-marriage test case drags on as others take plunge

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ANKENY, IOWA | More than three years after the Iowa Supreme Court ruled unanimously in favor of same-sex marriage, supporters of the decision say predictions of disaster have not been borne out, while gay-marriage opponents say they continue to lose ground in the fight because "finger-in-the-wind" Republicans have abandoned the cause.

The battle in the American heartland can be seen as a test case politically for the longer-term fallout as states across the country struggle with the gay-marriage issue. Utah and New Mexico in recent days became the latest states dealing with court rulings undercutting state statutes in favor of traditional marriage.

The Iowa court's ruling in 2009 was seen as a watershed moment for the gay-rights movement and, looking back at it, some of the justices who were booted from the bench in an unprecedented "retention" campaign a year later say they are confident they came down on the right side of the law.

"Legally, there was no question in my mind which way we had to come out," Justice David L. Baker told The Washington Times. "As far as regrets? No, that's my job, and I did it, and I'm certainly not going to second-guess myself."

The ruling, striking down a state law defining marriage as only between one man and one woman, landed the justices in hot water with social conservatives and religious groups across the nation, which accused them of legislating from the bench.

Since ousting Mr. Davis and two of his colleagues, opponents of same-sex marriage have faced the bleak reality that in order to overturn the decision they must pass an amendment to the Iowa Constitution — a high bar to clear given that it must be approved first by two consecutive sessions of the state Legislature before it is placed on the ballot for final voter approval.

The ruling, meanwhile, made Iowa the first state in the Midwest to legalize same-sex marriage and helped change the political dynamic in the state.

Indeed, Iowans voted last year to retain state Supreme Court Justice David S. Wiggins, who supported the ruling, and now is one of 18 states and the District of Columbia that recognize same-sex marriage.

Polls show more Americans support same-sex marriage and approve of the U.S. Supreme Court rulings that said the federal Defense of Marriage Act was unconstitutional and that the backers of California's Proposition 8 banning same-sex marriage did not have standing to argue the case before the court — thus paving the way for same-sex marriage in the state. The court stopped short, however, of invalidating all the laws and constitutional statutes in the states against same-sex marriage.

The issue is dividing Republicans and has sparked a public family feud between former Vice President Dick Cheney's daughters — Liz, who opposes same-sex marriage and is running for a Senate seat in Wyoming, and Mary, who is gay and married to a woman.

Mr. Cheney was opposed to same-sex marriage when he served in the Bush administration, but he has since said the issue should be decided by states. That puts him on the same page as GOP Sens. Rand Paul of Texas and Marco Rubio of Florida, but in conflict with Sen. Ted Cruz, a Texas Republican who backs a constitutional amendment banning same-sex marriage.

The Republican National Committee warned in its post-2012 election postmortem — called the Growth and Opportunity Project — that some young voters view the party as "totally intolerant of alternative points of view" because of opposition to same-sex unions.

"Already, there is a generational difference within the conservative movement about issues involving the treatment and the rights of gays — and for many younger voters, these issues are a gateway into whether the party is a place they want to be," the report said.

Top 10 issue?

A.J. Spiker, the Iowa state Republican Party chairman and a supporter of former Rep. Ron Paul, a longtime libertarian from Texas, said most young people don't see marriage as a "top 10 or 20 issue."

"It is a bit of a challenge for the party in that we are not going to abandon being the party of traditional marriage, but yet you have a little bit of a changing society happening. How do you fit those two things together without alienating the biggest voting block within the GOP — committed Christians?" Mr. Spiker said. "It could be interesting as time goes on."

Opposition to same-sex marriage has been a bedrock issue for Republican candidates in recent presidential races, and nowhere is that more true than in Iowa, where the top choices of participants of Republican caucuses in the past two presidential election cycles — former Arkansas Gov. Mike Huckabee and former Sen. Rick Santorum of Pennsylvania — built reputations as social issue crusaders opposed to same-sex marriage.

Robert L. Vander Plaats, head of the Christian conservative Family Leader, which led the effort to oust three of the Iowa Supreme Court justices, said the issue will remain a litmus test.

"I think the reason we are losing ground in the fight on marriage is that too many 'leaders' who believe in one man/one woman marriage have decided to step away from the microphone," Mr. Vander Plaats said. "When you step away from the microphone, that is basically acquiescing and saying, 'OK, it is over.'"

"So, to us, it is like that is a hill that I am not going to die on and we are thinking marriage is foundational, marriage is fundamental, and we have too many people just willing to back away from it just because they are putting their finger into the wind on the poll numbers, and saying, 'I need to run this way.'"

The road ahead

Mr. Vander Plaats said he has not decided whether to target three still-sitting justices involved in the 2009 ruling when they come up for retention votes in 2016. But he said he is confident that his group is strong enough to pick them off and that Iowa voters would pass a constitutional amendment barring same-sex marriage if given the chance.

Gov. Terry E. Branstad, a Republican, also said Iowa voters should get a chance to vote on the issue.

"What Iowans really object to is the Supreme Court of this state making a policy decision of that magnitude," he said. "People ought to have a vote on it."

Asked whether he would lead that fight, Mr. Branstad said, "It is up to the legislature. The governor really doesn't have a role in it."

David Kochel, a Republican consultant who has served as an adviser to Mr. Branstad and Mitt Romney, supports same-sex marriage and said the party would be better off focusing on other issues that appeal to a broader audience.

"The sky hasn't fallen," Mr. Kochel said of the ruling. "Our kids are fine, our families are fine. This isn't something that eroded the fabric of Iowa."

However, he agreed that the 2016 presidential candidates will have to navigate the issue in the Iowa caucuses, where 2012 exit polls found that nearly six in 10 voters identified themselves as "born-again" or evangelical Christians.

"You may not see a candidate running here who supports same-sex marriage in the near future, but to many, what's important is for the party to turn down the temperature on a fight that we have already had for years," Mr. Kochel said. "When we continue to try to go back and kick the same dead horse, all we do is turn off new potential voters who might agree with the GOP on a lot of other things. I think it is a waste of time and it is a waste of resources. It boxes our candidates in too much. It turns off young people, it turns off women, and it turns off independents."

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