At least 75 top Republicans have signed a legal brief to be submitted to the Supreme Court this week, arguing that same-sex marriage is a constitutional right, according to The New York Times, which obtained a copy of the document.
Late next month, the court will take on the subject when it will hear oral arguments on the constitutionality of California’s gay marriage ban, Proposition 8, and the Defense of Marriage Act (DOMA).
The Supreme Court is expected to render a decision on the two cases in early summer.
There is one catch, however. The signers are mostly out-of-office Republicans or former top officials, including former Utah Gov. Jon Huntsman, former Rep. Deborah Pryce (R-Ohio), former Massachusetts Govs. William Weld and Jane Swift, and former New Jersey Gov. Christine Todd Whitman.
Reps. Richard Hanna (NY) and Ileana Ros-Lehtinen (FL) are notable exceptions, and are among the most pro-gay Republicans in Congress.
House Speaker John Boehner (R-Ohio) is poised to spend up to $3 million in defense of DOMA, a discriminatory law that prohibits same-sex married couples from getting federal benefits and allows states not to recognize other states’ same-sex unions. The Obama administration has directed its Justice Department not to defend the law.
“The ground on this is obviously changing, but it is changing more rapidly than people think,” John Feehery, a Republican strategist and former House leadership aide who did not sign the brief, told the Times. “I think that Republicans in the future are going to be a little bit more careful about focusing on these issues that tend to divide the party.”
According to another Times article:
The brief makes solid arguments, starting with the fact that there is no legal, factual or sociological basis for denying gay couples the right to marry. “The denial of civil marriage to same-sex couples does not mean that their children will be raised by married opposite-sex couples,” the brief says. “Rather, the choice here is between allowing same-sex couples to marry, thereby conferring on their children the benefits of that marriage, and depriving those children of married parents altogether.”
Laws like Proposition 8, they argue, do nothing to promote stability in heterosexual marriages and, besides, have no constitutional justification. “However firmly and honestly” opponents of same-sex marriage feel about their positions, the brief says, there is no basis for “a discriminatory law like Proposition 8.”
Now the big question is whether the president will follow the example of these 75 Republicans, and file his own brief in opposition to Proposition 8. He came out against DOMA and said he personally supports marriage equality, so what’s stopping him? It’s the morally right and politically wise thing to do.
Sadly, some people never change. Former first lady Laura Bush, who protested to get footage of her removed from a pro-gay marriage ad campaign has not signed the brief. Neither has former Secretary of State Colin Powell. Former Vice President Dick Cheney has not signed it, despite the fact that pro-gay Republican groups crow that he has been more progressive than President Barack Obama on the issue.
“The die is cast on this issue when you look at the percentage of younger voters who support gay marriage,” Steve Schmidt, who was a senior adviser to the 2008 Republican presidential nominee, Senator John McCain of Arizona, told the Times. He also signed the brief. “As Dick Cheney said years ago, ‘Freedom means freedom for everybody.’"