February 26, 2013
By Jacob Combs
More than 70 well-known Republicans have added their names to a legal brief that will be filed later this week with the Supreme Court arguing that Proposition 8 is unconstitutional and that gays and lesbians have a constitutional right to marry, the New York Times reported late last night.
The brief, which was filed in consultation with Republican legal star Ted Olson, who is representing the plaintiffs in the case, will argue that marriage equality furthers the conservative values of “limited government and maximizing individual freedom.”
Among the signatories to the brief are Meg Whitman, who supported Proposition 8 during her failed 2010 gubernatorial campaign, U.S. Representatives Ileana Ros-Lehtinen (R-FL) and Richard Hanna (R-NY), and several former Republican governors such as Christine Todd Whitman of New Jersey, Jane Swift of Massachusetts and Jon Huntsman, Jr. of Utah. Last week, Huntsman wrote an article in the American Conservative titled “Marriage Equality Is a Conservative Cause.”
According to the Times, which obtained a copy of the brief in advance of its filing, the document “cites past Supreme Court rulings dear to conservatives, including the Citizens United decision lifting restrictions on campaign financing, and a Washington, D.C., Second Amendment case that overturned a law barring handgun ownership.”
“As opposition to the freedom to marry becomes increasingly isolated and the exclusion from marriage increasingly indefensible, Americans all across the political spectrum are saying it’s time to end marriage discrimination, do right by families, and get our country on the right side of history,” said Evan Wolfson, the president of the national marriage equality organization Freedom to Marry, in a statement.
The Supreme Court frequently receives several friend-of-the-court briefs when considering litigation, especially cases that are as high profile as the Prop 8 challenge. In general, legal experts are skeptical of the extent to which the Court is swayed by such outside filings. But as the Times notes, this particular brief could be an exception to the rule, particularly when seen through the eyes of the men likely intended as the focus of its arguments: the Court’s conservative members, particularly Justice Anthony Kennedy and Chief Justice John Roberts.
Tom Goldstein, the publisher of the Supreme Court-watching website SCOTUSblog, told the Times the Republican brief “has the potential to break through and make a real difference”:
“The person who is going to decide this case, if it’s going to be close, is going to be a conservative justice who respects traditional marriage but nonetheless is sympathetic to the claims that this is just another form of hatred. If you’re trying to persuade someone like that, you can’t persuade them from the perspective of gay rights advocacy.”
Earlier this month, the Respect for Marriage Coalition briefly ran a print and TV ad campaign featuring statements in support of marriage equality by former First Lady Laura Bush, former Vice President Dick Cheney and former Secretary of Defense Colin Powell. The ad was pulled a few days after it debuted at the request of Laura Bush.
The Republican brief that will be filed later this week, which demonstrates changes of heart for former supporters like Whitman, is not the first instance of significant conservative figures shifting towards support of equal marriage rights. Last summer, David Blankenhorn, the founder of the Institute for American Values and one of the two witnesses who testified in favor of Prop 8 before the district court, announced in a New York Times op-ed that he had changed his mind on the issue. In his piece, Blankenhorn wrote, “Whatever one’s definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.”
If the arguments in this upcoming brief can persuade Anthony Kennedy to add his name to the list of Republicans in support of marriage equality, it will be a hugely significant sign of the watershed taking place within the Republican Party on the issue of equal marriage rights.
We will publish the brief here at EqualityOnTrial when we obtain a copy.