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75+ Prominent Republicans Sign Brief Urging Supreme Court to Strike Down Proposition 8

More than 75 current and former GOP elected officials including former Reagan and Bush cabinet members, former governors, and key GOP consultants and strategists have signed on to an amicus brief to be filed on Thursday urging the Supreme Court to strike down Proposition 8.

See a summary and excerpts from the brief obtained by Towleroad, below....

MehlmanAmong those signing the brief, according to organizers, are former RNC Chair Ken Mehlman, former California gubernatorial candidate Meg Whitman, former U.S. Deputy Atty General Jim Comey, Mary Cheney, Senior Romney Adviser in Iowa Dave Kochel, Reps Ileana Ros-Lehtinen (R-FL) and Richard Hanna (R-NY), and Bush National Security Advisor Steven Hadley.

Many of those who signed it have never before made public their support of marriage equality.

UPDATE: Here's the full list (so far) of signatories.

The brief argues that "there is no legitimate, fact-based justification for different legal treatment of committed relationships between same-sex couples," arguing that marriage equality promotes conservative values:

Amici start from the premise—recognized by this Court on at least fourteen occasions—that marriage is both a fundamental right protected by our Constitution and a venerable institution that confers countless benefits, both to those who marry and to society at large.  …  It is precisely because marriage is so important in producing and protecting strong and stable family structures that amici do not agree that the government can rationally promote the goal of strengthening families by denying civil marriage to same-sex couples.

It also argues that there is no credible social science behind the arguments pushed by Prop 8's proponents:

Deinstitutionalization.  No credible evidence supports the deinstitutionalization theory.   …  Petitioners fail to explain how extending civil marriage to same-sex couples will dilute or undermine the benefits of that institution for opposite-sex couples … or for society at large.  It will instead do the opposite.  Extending civil marriage to same-sex couples is a clear endorsement of the multiple benefits of marriage—stability, lifetime commitment, financial support during crisis and old age, etc.—and a reaffirmation of the social value of this institution.

Biology.  There is also no biological justification for denying civil marriage to same-sex couples.  Allowing same-sex couples to marry in no way undermines the importance of marriage for opposite-sex couples who enter into marriage to provide a stable family structure for their children.

Child Welfare.  If there were persuasive evidence that same-sex marriage was detrimental to children, amici would give that evidence great weight.  But there is not.  Social scientists have resoundingly rejected the claim that children fare better when raised by opposite-sex parents than they would with same-sex parents.

And although the law is consonant with firmly held beliefs, it does not sustain its Constitutionality:

Although amici firmly believe that society should proceed cautiously before adopting significant changes to beneficial institutions, we do not believe that society must remain indifferent to facts. This Court has not hesitated to reconsider a law’s outmoded justifications and, where appropriate, to deem them insufficient to survive an equal protection challenge.  The bases on which the proponents of laws like Proposition 8 rely are the products of similar thinking that can no longer pass muster when the evidence as it now stands is viewed rationally, not through the lens of belief though sincerely held.

Finally, the brief encourages court to protect the fundamental right to marry by offering it to same-sex couples:

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.

Amici recognize that a signal and admirable characteristic of our judiciary is the exercise of restraint. Nonetheless, this Court’s “deference in matters of policy cannot … become abdication of matters of law.” The right to marry indisputably falls within the narrow band of specially protected liberties that this Court ensures are protected from unwarranted curtailment. 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.

Said Mehlman to the NYT: "“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."

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  1. Game changer?

    Posted by: Andy | Feb 25, 2013 11:30:06 PM

  2. This is EXACTLY the type of "cover" that Chief Justice Roberts and Justice Kennedy might feel that they "need" in order to strike down Prop 8 and/or DOMA.

    Although it's true that Ted Olsen is a well-respected conservative lawyer, he does represent the anti-Prop 8 groups -- and so the Supreme Court will view him as an advocate for his clients. But with many conservative Republicans now presenting their anti-Prop 8 views through this filing an amicus brief, that will help ameliorate the criticism that Roberts and/or Kennedy might get for voting against Prop 8 and DOMA. That's especially important because the conservatives have blasted Roberts for voting to uphold so-called "Obamacare", which NO conservative group supported. So now Roberts and Kennedy have some "cover" to vote in our favor, and they can validly say that they are just choosing "which conservative viewpoint" to adopt when it comes to Prop 8 and DOMA -- the libertarian, non-religious conservative viewpoint presented by the amicus brief vs. the morality-police religious fundamentalist conservative viewpoint presented by NOM, the Catholic Church, and others.

    Will this make a difference? Yes. It's native to think that politics and ideology have nothing to do with how Supreme Court Justices vote.

    Finally, although we may personally disagree with much of what the conservative Republicans stand for, let's not berate them (including Mehlman) for coming "too late" to a pro-gay rights viewpoint on these important issues. Yes, they deserve lots of criticism, but it gets us nothing at this stage. We need to win these Supreme Court cases (Prop 8 and DOMA, and they are definitely "not in the bag" because no human being really KNOWS how Roberts and/or Kennedy will vote.

    Posted by: MiddleoftheRoader | Feb 25, 2013 11:42:03 PM

  3. This is a reversal for Meg Whitman, who in 2010 said that as governor she WOULD defend Proposition 8.

    Posted by: Joe | Feb 25, 2013 11:52:15 PM

  4. Meg Whitman should not get off easy. She didn't just say she'd defend Prop 8 she used really ominous silhouettes of one man/one woman families as backdrops for her . She went so far out there that she sufficiently alienated her former ebay colleagues that they called off their fundraiser. It's hardly possible to see this as a reversal without Without a believable mea culpa and evolution talk and some sense that it's real (or the scenario we'll never see, an honest admission that she only cynically took that position back then but really didn't care a bit about it then or now, but she sees which way the $10 bills are floating.

    Posted by: michael goff | Feb 26, 2013 12:24:27 AM

  5. All they need to do is declare sexual orientation as a suspect class, and the marriage bans will be invalidated state by state

    Posted by: Anthony | Feb 26, 2013 12:36:18 AM

  6. To paraphrase an old cliche, "Rats jump on a raising ship".

    Posted by: StevyD | Feb 26, 2013 1:51:53 AM

  7. "no human being really KNOWS how Roberts and/or Kennedy will vote"

    I think we all know how Roberts will vote. Kennedy could go either way, but Roberts was selected with this issue specifically in mind.

    Posted by: BABH | Feb 26, 2013 2:07:35 AM

  8. The ball is now in Obama's court.

    Posted by: Randy | Feb 26, 2013 2:07:39 AM

  9. All the criticism of Meg Whitman will be brushed away (and rightly so) if this brief swings the court our way and ends DOMA.

    If Obama could campaign on a "I oppose same-sex marriage" platform in 2008 and then embrace it later, so can Whitman.

    This brief could indeed be the "difference-maker" on marriage. Once DOMA is struck down, the LGBT legal rights struggle is effectively over in the USA (other than mop-ups in anti-gay states, which the court will probably address in another couple of years).

    Posted by: Brian | Feb 26, 2013 2:09:20 AM

  10. @Randy: How in Obama's court? His administration already filed a brief urging the court to strike down Prop 8.

    Posted by: BABH | Feb 26, 2013 2:11:09 AM

  11. "Roberts was selected with this issue specifically in mind"

    I think you'd be surprised. Roberts, as a younger lawyer, took several LGBT rights cases, including one pro-bono. The Republicans have appointed a number of judges who were "supposed" to be social conservatives but who ruled our way -- most notably, Judge Walker (who struck down Prop 8 in the federal ruling in California).

    Roberts ain't Scalia, and as Chief Justice of the Court, he's got a legacy to think about.

    Posted by: Brian | Feb 26, 2013 2:20:40 AM

  12. I was kind of hoping for an argument that the whole Proposition Eight campaign was based on hate, with the public being fed one lie after another, and if you do that to get legislation passed, that legislation has no factual basis prima facie. Such a rule would help protect all minorities.

    Posted by: Bill | Feb 26, 2013 2:29:59 AM

  13. I want to know if any of these Justices intend to recuse themselves on the basis of their religious memberships.

    How does Scalia even think of himself as capable of making a judicial even handed judgment when he is so committed to his Catholic bias ?

    Posted by: JackFknTwist | Feb 26, 2013 2:33:59 AM

  14. "I think you'd be surprised."

    I doubt it. I worked on the Senate Judiciary Committee staff during his confirmation. I have a pretty good sense of his record, his philosophy, and his character. He is not going to defy Catholic teaching in order to overturn a plebiscite in an area of law customarily reserved to the States. I would of course be very happy to be proven wrong.

    Posted by: BABH | Feb 26, 2013 2:40:16 AM

  15. Robert might - maybe - vote to overturn Section 3 of DOMA, but not to overturn Prop 8.

    Posted by: BABH | Feb 26, 2013 2:44:37 AM

  16. Thanks Babh, for absolutely destroying my happiness tonight - I thought Roberts was a reasonable guy, guess I was wrong. Well, if he wants to look like an idiot 20 years from now, that's his decision.

    Posted by: Anthony | Feb 26, 2013 3:15:40 AM

  17. So it's been 8 years since Roberts was confirmed - you don't think he's evolved either? Same with Alito? Thanks for being such a debbie downer. Now I realize they are trying to destroy our momentum, those bastards.

    Posted by: Anthony | Feb 26, 2013 3:21:35 AM

  18. I think the GOP is finally realizing they need to change or risk being seen as irrelevant and nonviable contenders in politics. If that means they jump on the bandwagon of equality, I'm all for it. I hope they truly mean it. Either way, that's the way the tide is turning. They can either resist the change or embrace it. I hope they embrace it, as many are starting to, and hopefully with a welcoming heart.

    All aboard!

    Posted by: Marc | Feb 26, 2013 4:02:11 AM

  19. Whoa!

    Posted by: Fat Queer | Feb 26, 2013 4:16:19 AM

  20. This is a BIG move for Republicans, and a very important step in the right direction for gay rights. Just when we (or I) were watching and waiting for Obama's administration to step up and weigh in on Prop 8, we get this signed brief.

    This latest brief is that final icing on the cake we needed, and that nail in the coffin for the religious rights' case, who has provided nothing of substance in their hate filled blabbered nonsense.

    I previously felt optimistic, I am now downright excited. I hope Obama weighs in on Prop 8 anyway. It really is starting to look like a slam-dunk does it not?

    Posted by: Jeff | Feb 26, 2013 4:31:50 AM

  21. Mary cheney supporting marriage equality??

    Thanks for speaking up when u were helping bush campaign on a constitutional amendment to ban it

    Posted by: rick scatorum | Feb 26, 2013 6:09:45 AM

  22. @Jeff: If you watch the news so carefully, when did you not notice the amicus brief that Obama filed against DOMA? I live in California, but Prop 8 is small potatoes next to DOMA.

    Posted by: Paul R | Feb 26, 2013 7:51:33 AM

  23. @BABH.... In Obama's court because his admin has filed a brief in the DOMA case, but not yet in the Prop 8 case......

    Posted by: anonymous | Feb 26, 2013 7:53:36 AM

  24. The country is evolving, to use the president's word -- every single hetero has to deal with the issue -- and they'll each do it at their own speed. To me, the thing to do is thank the folks, and not look for any negatives, nor recall what they said in times past. For if we start to recall what politicians of both parties said about us in recent times we well might not like any of them ever. It is also true that gayness is not a left-right political issue, but something far deeper than politics. True, one party came along faster, but recently, but the rest will come along. And we need all 300 million Americans to be for us, not just one party or a few politicians.

    Posted by: Jim Hlavac | Feb 26, 2013 8:08:31 AM

  25. Wait. Nobody's been totally awful on this thread yet. I don't understand.

    Posted by: Yeek | Feb 26, 2013 8:10:10 AM

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