More than 100 high-profiled Republicans have signed on to a brief asking the Supreme Court to uphold the overturning of Proposition 8, California’s voter-enacted same-sex marriage ban.
The list of Republicans on the brief now tallies more than 100, organizers say. It now includes Beth Myers, who ran Mr. Romney’s 2008 campaign and was a senior adviser to him in 2012..
The brief, organized by Ken Mehlman, a former chairman of the Republican National Committee who is gay, will be filed on Thursday as a friend-of-the-court, or amicus, brief to a lawsuit that seeks to overturn Proposition 8, a California ballot initiative that bars same-sex marriage, and all similar bans.
Signatories include Meg Whitman, who supported Proposition 8 when she ran for California governor. It also includes Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York, and Stephen J. Hadley, a Bush national security adviser, among several more high-profile names.
As such, the import of the brief is multi-layered.
The particulars of the case put aside for a moment, the brief puts the aforementioned Republicans in direct opposition to Speaker John Boehner — and the House of Representatives at large — and the contention that same-sex marriage bans must be preserved. Boehner has spent well over a million dollars of tax payer money as he seeks to defend the federal Defense of Marriage Act in court, and for a long time it appeared this was a safe course for the Speaker. Not so anymore.
For quite some time now public support for same-sex marriage among Republicans, and in particular moderate and young Republicans, has been rising. This brief seems to send a clear signal that an issue which once seemed to unify the Republican party, wrapping together the hard-nosed Religious Right with the more egalitarian GOP faithful, is no longer so soundly spliced.
This strong showing of Republican support is doubly important in this case, however: not only does it serve to show that one need not abandon conservative values in order to support marriage equality, with litigator Ted Olson of course having long argued same-sex marriage is in fact germane to the goals of standard conservative politics, but it also seems to reach out to one key justice in particular who could provide the swing vote in this case, Justice Anthony Kennedy.
Indeed, fellow Care2 blogger and legal analyst Jessica Pieklo previously detailed how the Ninth Circuit’s ruling upholding District Court Judge Vaughn Walker’s 2010 decision to strike down Proposition 8 seemed tailored to Kennedy’s sensibilities.
Kennedy wrote for the court in striking down a voter-enacted Colorado law that specifically targeted gay people (Romer), giving gay rights an early legal win.
The Ninth Circuit, in ruling to uphold Vaughn Walker’s judgement, wrote at length as to how the Proposition 8 case is substantially similar in that while it could be argued same-sex couples are not functionally disadvantaged by the ban — they can, per California’s expanded domestic partnerships, access all relevant state level rights without having access to marriage–the fact that they have been expressly targeted by the majority who used a popular vote to define away a California Supreme Court-affirmed constitutional right to marriage, is evidence of bias motivation that is not dissimilar to what the Supreme Court of the United States found against in Romer.
However, Kennedy’s level of support is likely to hinge on how the case is framed, with legal analysts predicting that Kennedy would tend to favor a narrower ruling that would deal only with Proposition 8 and not a wider framing that could have ramifications for other state level gay marriage bans.
Oral arguments in this case are due in late March.
While the Obama administration has intervened in support of plaintiffs in the other big same-sex marriage case before the Supreme Court, Windsor v United States, the administration has yet to do so in Hollingsworth v Perry. The administration has until the close of February to make such an intervention.
Such strong Republican support as evidenced with this brief may add further encouragement for an administration that has prided itself on being a leading force on the marriage equality issue.
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