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Topics In the News
Prominent Republicans File Brief Asking Supreme Court to Declare Proposition 8 Unconstitutional
Posted by: Claude J. Summers on 02/26/13
Last updated on: 02/28/13
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Former RNC chair Ken Mehlman was among the signatories.

More than 100 prominent Republicans have signed an amicus brief asking the United States Supreme Court to declare Proposition 8, the California referendum that banned same-sex marriage, unconstitutional. Among the signers to the brief, written by former Solicitor General Seth Waxman and Reginald Brown, who served in the office of the White House Counsel in the administration of President George W. Bush, are several former governors and members of Congress, as well as Meg Whitman, who supported Proposition 8 when she ran for Governor of California in 2010.

As the New York Times reports, the brief argues that gay people have a constitutional right to marry, "a position that amounts to a direct challenge to Speaker John A. Boehner and reflects the civil war in the party since the November election."

The brief is tailored to sway conservative justices on the Supreme Court. It argues that same-sex marriage promotes family values by allowing children of gay couples to grow up in two-parent homes, and that it advances the conservative values of "limited government and maximizing individual freedom."

In making the case for a constitutional right to same-sex marriage, the brief cites Supreme Court precedents dear to conservatives such as the Citizens United decision lifting restrictions on campaign financing and a Second Amendment case that overturned a Washington, D.C. law barring handgun ownership.

Perhaps its most stirring passage is the following: "Choosing to marry is also a paradigmatic exercise of human liberty. Marriage is thus central to government's goal of promoting the liberty of individuals and a free society. For those who choose to marry, legal recognition of that marriage serves as a bulwark against unwarranted government intervention into deeply personal concerns such as the way in which children will be raised and in medical decisions."

The brief recognizes the value of "judicial restraint," but says the Court's "deference in matters of policy cannot . . . become abdication of matters of law." It says that "Proposition 8 ran afoul of our constitutional order by submitting to popular referendum a fundamental right that there is no legitimate, fact-based reason to deny to same-sex couples. This case accordingly presents one of the rare but inescapable instances in which this Court must intervene to redress overreaching by the electorate."

Ken Mehlman, the former chairman of the Republican National Committee who came out several years ago, told the Times, "We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8." Mehlman serves on the board of the American Foundation for Equal Rights, which brought the California suit, and has spent months in quiet conversations with fellow Republicans to gather signatures for the brief.

Among the signers are five former governors (Jon Huntsman of Utah, Christine Todd Whitman of New Jersey, and William Weld, Paul Cellucci, and Jane Swift of Massachusetts), two sitting members of Congress (Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York); National Security Advisor in the Bush administration Stephen J. Hadley; former Deputy Secretary of Defense in the Bush administration Paul Wolfowitz; former Secretary of Commerce in the Bush administration, Carlos Gutierrez; Deputy Attorney General in the Bush administration James B. Comey; and President Ronald Reagan's budget director, David A. Stockman.

Also included among the signatories are former members of Congress Michael Huffington of California, Mary Bono Mack of California, James Kolbe of Arizona, Deborah Pryce of Ohio, and Christopher Shays of Connecticut, as well as several Republican political consultants, including Stephen Schmidt, Nicole Wallace, Ken Duberstein, Alex Castellanos, Mike Murphy, David Frum, Michael Turk, and Margaret Hoover.

While experts say that amicus briefs generally do not heavily influence the Supreme Court, Tom Goldstein of Scotusblog said that this brief may make a difference because it is so closely tailored to the interests of conservative justices. "The person who is going to decide this case, if it's going to be close," Goldstein added, "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."

The brief is analyzed at Towleroad by Ari Ezra Waldman who contrasts it with the brief filed by Theodore Olson and David Boies, which can be situated squarely within the American progressive tradition of fairness and equality. Waldman also says that the Republican brief increases the pressure on President Obama to file his own brief in the Proposition 8 case.

Wayne Besen of Truth Wins Out sees the Republican brief as evidence of a deep divide in the Republican Party on the question of marriage equality and speculates that the divide may ultimately cause the GOP to divorce the religious right.

Andrew Sullivan, at The Dish writes movingly about what he sees as a major "breakthrough." He also includes lengthy excerpts from the brief and a full list of signatories.

On the afternoon of February 26, Meg Whitman released a statement explaining her decision to sign the amicus brief and her evolution to support marriage equality.

"I have come to embrace same-sex marriage after a period of careful review and reflection. As a candidate for governor three years ago, I supported Proposition 8. At the time, I believed the people of California had weighed in on this question and that overturning the will of the people was the wrong approach. The facts and arguments presented during the legal process since then have had a profound impact on my thinking."

"In reviewing the amicus brief before deciding to put my signature on it," she writes, "one passage struck an immediate chord with me. In explaining his own support for same-sex marriage, British Prime Minister David Cameron once said, 'Society is stronger when we make vows to each other and support each other. So I don't support gay marriage despite being a conservative. I support gay marriage because I am a conservative.'"

After declaring that "Marriage is the single greatest contributor to the well-being of adults and children because it promotes eternal principles like commitment, fidelity and stability," she concludes that "Like several others who have either sought or held public office, including President Obama, I have changed my mind on this issue. Same-sex couples and their children should have equal access to the benefits of marriage."

Bloomberg reports that more than 200 corporations, including Apple, Morgan Stanley, and Facebook, are expected to be filing amici briefs to the Supreme Court this week in support of marriage equality.

The brief may be read below.

Perry: Amicus Brief of Mehlman et al by

In the video below, former chairman of the Republican National Committee, makes a conservative case for marriage equality.

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