Dozens of prominent Republicans sign Supreme Court brief supporting legalized gay marriage

posted at 10:41 am on February 26, 2013 by Allahpundit

We’re stretching the definition of “prominent” a bit for this one, eh? The closest thing here to a current Republican officeholder with a national profile is Ileana Ros-Lehtinen. The only person named whom the average Republican voter might be able to pick out of a line-up is Huntsman, a.k.a. the new co-chairman of No Labels.

Still, noteworthy. Not because it’ll matter to the Supreme Court, despite the hyperventilating in the article, but because it’s a way for pro-SSM Republicans to get publicity for their point of view. If you want to signal to young voters and to like-minded righties (especially in Congress) that there’s a constituency for this position in the GOP, this is one way to do it.

Legal analysts said the brief had the potential to sway conservative justices as much for the prominent names attached to it as for its legal arguments. The list of signers includes a string of Republican officials and influential thinkers — 75 as of Monday evening — who are not ordinarily associated with gay rights advocacy, including some who are speaking out for the first time and others who have changed their previous positions.

Among them are Meg Whitman, who supported Proposition 8 when she ran for California governor; Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York; Stephen J. Hadley, a Bush national security adviser; Carlos Gutierrez, a commerce secretary to Mr. Bush; James B. Comey, a top Bush Justice Department official; David A. Stockman, President Ronald Reagan’s first budget director; and Deborah Pryce, a former member of the House Republican leadership from Ohio who is retired from Congress…

But the presence of so many well-known former officials — including Christine Todd Whitman, former governor of New Jersey, and William Weld and Jane Swift, both former governors of Massachusetts — suggests that once Republicans are out of public life they feel freer to speak out against the party’s official platform, which calls for amending the Constitution to define marriage as “the union of one man and one woman.”

Christie Todd Whitman plus two ex-governors of Massachusetts. Way to win over the conservative base, guys. As for this, c’mon:

[SCOTUSblog's Tom Goldstein] added: “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.”

Even I give Anthony Kennedy a little (emphasis: a little) more credit as a jurist than to believe he might vote no but for some weak political cover from a few dozen not-so-prominent Republicans in the form of an amicus brief. He’s broken with conservatives twice before to write landmark majority opinions in favor of gay rights. The first of those opinions, in 1996, came when national support for gay marriage was polling south of 30 percent. As the closest thing the Court has to a libertarian, clearly he can be persuaded from the perspective of gay rights advocacy. Why he’d need Jon Huntsman or Ken Mehlman in his corner in order to give the thumbs up on this one, I simply don’t understand.

Exit question: If I’m right that this brief is less about persuading Kennedy than about persuading rank-and-file Republicans who are on the fence about gay marriage, why didn’t the signatories simply start a “Republicans for gay marriage” organization instead? I thought Huntsman, in his op-ed last week, was endorsing a federalist approach to SSM, which has the virtue of building democratic legitimacy for the practice. Evidently not. According to the NYT’s piece today, the amicus brief he signed argues “that gay people have a constitutional right to marry.” If that view prevails, the democratic approach is dead; you’ll have gay marriage coast to coast immediately as a matter of equal protection under the Fourteenth Amendment. If your goal is to persuade socially conservative opponents, running to the Supremes to ask them to override state referenda is an odd way to do it. But maybe that’s the point here — that gay-marriage supporters, at least inside the Beltway, have given up on persuasion.


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