
UPDATED: This morning I wrote about the brief filed by dozens of prominent Republicans asking the U. S. Supreme Court to not only strike down Proposition 8 but to uphold a constitutional right to marriage for same sex couples. Indeed, 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. Here's a sampling of the brief's language:
Amici are social and political conservatives, moderates, and libertarians
from diverse religious, racial, regional, and philosophical backgrounds; many
have served as elected or appointed federal and state office-holders. Many of
the signatories to this brief previously did not support civil marriage for
same-sex couples; others did not hold a considered position on the issue.
However, in the years since Massachusetts and other states have made civil
marriage a reality for same-sex couples, amici, like many Americans, have
observed the impact, assessed their core values and beliefs, and concluded that
there is no legitimate, fact-based reason for denying same-sex couples the same
recognition in law that is available to opposite-sex couples who wish to marry.
Rather, we have concluded that the institution of marriage, its benefits and
importance to society, and the support and stability it gives to children and
families are promoted, not undercut, by providing access to civil marriage for
same-sex couples.
Amici do not denigrate the deeply held emotional, cultural, and religious
beliefs that lead sincere people to take the opposite view (and, indeed, some
amici themselves once held the opposite view). Whether same-sex couples should
have access to civil marriage divides thoughtful, concerned citizens. Those who
support and those who oppose civil marriage for same-sex couples hold abiding
convictions about their respective positions. But a belief, no matter how
strongly or sincerely held, cannot justify a legal distinction that is
unsupported by a factual basis, especially where something as important as civil
marriage is concerned. Amici take this position with the understanding that
providing access to civil marriage for same-sex couples—which is the only issue
raised in this case—poses no credible threat to religious freedom or to the
institution of religious marriage. Given the robust constitutional protections
for the free exercise of religion, amici do not believe that religious
institutions should or will be compelled against their will to participate in a
marriage between people of the same sex.
I. There Is No Legitimate, Fact-Based Justification For Different Legal
Treatment Of Committed Relationships Between Same-Sex Couples
Laws that make distinctions between classes of people must have “reasonable
support in fact.” New York State Club Ass’n, Inc. v. City of New York, 487 U.S.
1, 17 (1988). Amici do not believe that laws like Proposition 8 have a
legitimate, fact-based justification for excluding same-sex couples from civil
marriage. Over the past two decades, amici have seen each argument against
same-sex marriage discredited by social science, rejected by courts, and
undermined by their own experiences with committed same-sex couples, including
those whose civil marriages have been given legal recognition in various States.
Instead, the facts and evidence show that permitting civil marriage for same-sex
couples will enhance the institution, protect children, and benefit society
generally.
A. Marriage Promotes The Conservative Values Of Stability, Mutual Support,
And Mutual Obligation
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.
B. Social Science Does Not Support Any Of The Putative Rationales For
Proposition 8
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.
C. While Laws Like Proposition 8 Are Consonant With Sincerely-Held Beliefs,
That Does Not Sustain Their 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.
I. This Court Should Protect The Fundamental Right Of Civil Marriage By
Ensuring That It Is Available 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.
The parties signing this brief demonstrate what real conservatives believe as opposed to religiously motivated fanatics who seek to punish LGBT individuals who fail to conform to Christianist beliefs.
Here is a list of the signatories so far, all of whom will no doubt be crucified by the spittle flecked forces of the Christofascists and "family values" groups (the ensuing conservative civil war should be entertaining to watch):
Court to Ken Mehlman, Chairman, Republican National Committee, 2005-2007
Tim
Adams, Undersecretary of the Treasury for International Affairs,
2005-2007
David D. Aufhauser, General Counsel, Department of Treasury,
2001-2003
Cliff S. Asness, Businessman, Philanthropist, and
Author
John B. Bellinger III, Legal Adviser to the Department of State,
2005-2009
Katie Biber, General Counsel, Romney for President, 2007-2008
and 2011-2012
Mary Bono Mack, Member of Congress,
1998-2013
William A. Burck, Deputy Staff Secretary, Special Counsel and
Deputy Counsel to the President, 2005-2009
Alex Castellanos, Republican
Media Advisor
Paul Cellucci, Governor of Massachusetts, 1997-2001, and
Ambassador to Canada, 2001-2005
Mary Cheney, Director of Vice
Presidential Operations, Bush-Cheney 2004
Jim
Cicconi, Assistant to the President & Deputy to the Chief of Staff,
1989-1990
James B. Comey, United States Deputy Attorney General,
2003-2005
R. Clarke Cooper, U.S. Alternative Representative, United
Nations Security Council, 2007-2009
Julie Cram, Deputy Assistant to the
President and Director White House Office of Public Liaison,
2007-2009
Michele Davis, Assistant Secretary for Public Affairs and
Director of Policy Planning, Department of the Treasury,
2006-2009
Kenneth M. Duberstein, White House Chief of Staff and Assistant
to the President, 1981-1984 and 1987-1989
Lew Eisenberg, Finance
Chairman, Republican National Committee, 2002-2004
Elizabeth Noyer Feld,
Public Affairs Specialist, White House Office of Management and Budget,
1984-1987
David Frum, Special Assistant to the President,
2001-2002
Richard Galen, Communications Director, Speaker̢۪s Political
Office, 1996-1997
Mark Gerson, Chairman, Gerson Lehrman Group and Author
of The Neoconservative Vision: From the Cold War to the Culture Wars and In the
Classroom: Dispatches from an Inner-City School that Works
Benjamin
Ginsberg, General Counsel, Bush-Cheney 2000 & 2004
Adrian Gray,
Director of Strategy, Republican National Committee, 2005-2007
Richard
Grenell, Spokesman, U.S. Ambassadors to the United Nations,
2001-2008
Patrick Guerriero, Mayor, Melrose Massachusetts and member of
Massachusetts House of Representatives, 1993-2001
Carlos Gutierrez,
Secretary of Commerce, 2005-2009
Stephen Hadley, Assistant to the
President and National Security Advisor, 2005-2009
Richard Hanna, Member
of Congress, 2011-Present
Israel Hernandez, Assistant Secretary of
Commerce for International Trade, 2005-2009
Margaret Hoover, Advisor to
the Deputy Secretary of Homeland Security, 2005-2006
Michael Huffington,
Member of Congress, 1993-1995
Jon Huntsman, Governor of Utah,
2005-2009
David A. Javdan, General Counsel, United States Small Business
Administration, 2002-2006
Reuben Jeffery, Undersecretary of State for
Economic, Energy, and Agricultural Affairs, 2007-2009
Greg Jenkins,
Deputy Assistant to the President and Director of Presidential Advance,
2003-2004
Coddy Johnson, National Field Director, Bush-Cheney
2004
Gary Johnson, Governor of New Mexico, 1995-2003
Robert Kabel,
Special Assistant to the President for Legislative Affairs,
1982-1985
Theodore W. Kassinger, Deputy Secretary of Commerce,
2004-2005
Jonathan Kislak, Deputy Undersecretary of Agriculture for Small
Community and Rural Development, 1989-1991
David Kochel, Senior Advisor
to Mitt Romney̢۪s Iowa Campaign, 2007-2008 and 2011-2012
James Kolbe,
Member of Congress, 1985-2007
Jeffrey Kupfer, Acting Deputy Secretary of
Energy, 2008-2009
Kathryn Lehman, Chief of Staff, House Republican
Conference, 2003-2005
Daniel Loeb, Businessman and
Philanthropist
Alex Lundry, Director of Data Science, Romney for
President, 2012
Greg Mankiw, Chairman, Council of Economic Advisers,
2003-2005
Catherine Martin, Deputy Assistant to the President and Deputy
Communications Director for Policy & Planning, 2005-2007
Kevin
Martin, Chairman, Federal Communications Commission, 2005-2009
David
McCormick, Undersecretary of the Treasury for International Affairs,
2007-2009
Mark McKinnon, Republican Media Advisor
Bruce P.
Mehlman, Assistant Secretary of Commerce, 2001-2003
Connie Morella,
Member of Congress, 1987-2003 and U.S. Ambassador to the Organization for
Economic Co-operation and Development, 2003-2007
Michael E. Murphy,
Republican Political Consultant
Michael Napolitano, White House Office of
Political Affairs, 2001-2003
Ana Navarro, National Hispanic Co-Chair for
Senator John McCain̢۪s Presidential Campaign, 2008
Noam Neusner, Special
Assistant to the President for Economic Speechwriting, 2002-2005
Nancy
Pfotenhauer, Economist, Presidential Transition Team, 1988 and President's
Council on Competitiveness, 1990
J. Stanley Pottinger, Assistant U.S.
Attorney General (Civil Rights Division), 1973-1977
Michael Powell,
Chairman, Federal Communications Commission, 2001-2005
Deborah Pryce,
Member of Congress, 1993-2009
John Reagan, New Hampshire State Senator,
2012-Present
Kelley Robertson, Chief of Staff, Republican National
Committee, 2005-2007
Ileana Ros-Lehtinen, Member of Congress,
1989-Present
Harvey S. Rosen, Member and Chairman, Council of Economic
Advisers, 2003-2005
Lee Rudofsky, Deputy General Counsel, Romney for
President, 2012
Patrick Ruffini, eCampaign Director, Republican National
Committee, 2005-2007
Steve Schmidt, Deputy Assistant to the President and
Counselor to the Vice President, 2004-2006
Ken Spain, Communications
Director, National Republican Congressional Committee, 2009-2010
Robert
Steel, Undersecretary of the Treasury for Domestic Finance,
2006-2008
David Stockman, Director, Office of Management and Budget,
1981-1985
Jane Swift, Governor of Massachusetts, 2001-2003
Michael
E. Toner, Chairman and Commissioner, Federal Election Commission,
2002-2007
Michael Turk, eCampaign Director for Bush-Cheney
2004
Mark Wallace, U.S. Ambassador to the United Nations, Representative
for UN Management and Reform, 2006-2008
Nicolle Wallace, Assistant to the
President and White House Communications Director, 2005-2008
William F.
Weld, Governor of Massachusetts, 1991-1997, and Assistant U.S. Attorney General
(Criminal Division), 1986-1988
Christine Todd Whitman, Governor of New
Jersey, 1994-2001, and Administrator of the EPA, 2001-2003
Meg Whitman,
Republican Nominee for Governor of California, 2010
Robert Wickers,
Republican Political Consultant
Dan Zwonitzer, Wyoming State
Representative, 2005-present