Prominent Republicans File Brief in Prop 8 Case

This is very encouraging news and it could actually have an effect on how the Supreme Court rules. A group of more than 70 prominent Republicans have signed onto a brief in the Prop 8 case urging the court to overturn California’s ban on same-sex marriage. The New York Times reports:

Dozens of prominent Republicans — including top advisers to former President George W. Bush, four former governors and two members of Congress — have signed a legal brief arguing that gay people have a constitutional right to marry, a position that amounts to a direct challenge to Speaker John A. Boehner and reflects the civil war in the party since the November election.

The document will be submitted this week to the Supreme Court in support of a suit seeking to strike down Proposition 8, a California ballot initiative barring same-sex marriage, and all similar bans…

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.

Here’s why it could matter:

Experts say that amicus briefs generally do not change Supreme Court justices’ minds. But on Monday some said that the Republican brief, written by Seth P. Waxman, a former solicitor general in the administration of President Bill Clinton, and Reginald Brown, who served in the Bush White House Counsel’s Office, might be an exception.

Tom Goldstein, publisher of Scotusblog, a Web site that analyzes Supreme Court cases, said the amicus filing “has the potential to break through and make a real difference.”

He 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.”

Regardless of how this particular case turns out, I think this brief also foreshadows the inevitable position most Republicans will take as public opinion turns more and more against them. They simply won’t have any choice.

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  • Too bad there is no similar tide (that I can see) against warrantless wiretapping and corporate welfare.

  • Reginald Selkirk

    and it could actually have an effect on how the Supreme Court rules.

    Which is sad in a way, because it highlights how political the current court is. Ideally, the case would be decided on its legal merit, and those wanting the law changed would concentrate on getting some new legislation.

  • Ichthyic

    I have to wonder if this is not a desperate political stunt on the part of some of the GoP who now realize that the extreme social positions their party has been empowering for DECADES now have finally, but inevitably, reached the point where their entire party is becoming marginalized.

    sorry, too little, too late GoP.


  • Ichthyic

    Ideally, the case would be decided on its legal merit, and those wanting the law changed would concentrate on getting some new legislation.

    exactly why I say this is nothing more than a stunt.

  • Ichthyic

    I mean, come ON, it’s obvious. They’re just waiving *jazz hands* and trying to loudly exclaim they aren’t the homophobic/racist party of NO.

    sorry, I ain’t buying it.

    Ed should have seen through this easily too.

  • Wingnut Head Explosion Alert!

    Please don your protective raincoats, face shields and rubber gloves.

  • Pah! All I see is RINO after RINO! True Conservatives™ would stand strong in their fight, fighting for some so-called “Americans” to not have the so-called “right” to so-called “gay” so-called “marriage”, much as their parents did against earlier Unpopular Minorities, and their parents’ parents did against their generation’s Unpopular Minorities, forming a Great Chain of Morality that never looks bad in retrospect, except when Grandma drops the “N” word at Christmas dinner. That’s a little uncomfortable.

  • Michael Heath

    Here’s a link to a slightly later article naming names when the count was 80:

  • kingoftoasty

    Maybe I’m just too cynical, but I can’t help but think this is just the first step on the road for the GOP to claiming that not only have they always been for equal rights for homosexuals, but it was in fact the right wing conservatives that championed for such rights, because the right of people to love any marry anyone of their choosing is and always has been “a traditional conservative value”.

    It’s really too bad that asshats on both sides of the aisle (im looking at you, Obama) couldn’t stand up for justice and equality before we began to reach the point when not standing for equal rights and protections for homosexuals is potentially hazardous to their re-election efforts.

    Regardless of what anyone else says, in my book motives do in fact matter. And if their consciences have in fact come into the effing 21st century then good. But if this is just a stunt to recoup their losses from the most recent election-day ass whipping, then all I can say is a big FUCK YOU.

  • looseleaf

    I was just as pissed at Strom Thurmond back when he *finally* came around on the

    Voting Rights Act — I saw it only as his desperate attempt to regain relevance in a new era. But (as an old activist patiently explained to me), the bill will now pass, and who cares how and who cares who?

  • abb3w

    It seems it might also be the basis for another re-write of history in fifty years, claiming that the REAL Republicans were in the right about gay marriage all along.

  • While it may well be an attempt by the (more or less) rational wing of the Republican party to lessen its reputation as the party of stupid, let’s not forget that at least three of the consevatives on the court (in their own minds, at least) are rational conservatives and we probably only need one of them. This sort of brief could give Kennedy and even Roberts enough cover to vote to strike down Prop 8, though perhaps only on narrow grounds.

  • Doug Little

    Oh the infighting is going to be glorious as the more sensible Republicans try and reclaim their party from the religious right and tea baggers.

    Que the industrial sized popcorn machine.

  • whheydt

    John Pieret (@12) has, I think, put a finger on the potential of this brief.

    It will be interesting to see what sort of ruling comes down in (most likely) June.

    If Prop. 8 is upheld, then there is a near certainty that a repeal initiative will be mounted, which will have a pretty good chance of passing.

    If Prop. 8 is overturned, then things could be even interesting. Will they uphold the appeals court ruling, which basically said that a right once recognized can’t be withdrawn, making the ruling apply only to California. Or will they uphold the original trial court decision that banning SSM is a matter of equaiity before the law and overturn *all* state bans on SSM?

    That last possibility is why I’ve maintained all along that appealing this case is a very dangerous thing for the anti-SSM groups. Ultimately, there is no upside for them beyond a delaying tactic, but there is huge immediate downside potenial for that side of the argument. They could have swallowed their pride, quietly slunk away and left the trial court decision in place, since trial courts do not set precedent. And if they had stopped at the appellate level, they’d have a ruling that restricts the effects to California, at least for the time being.

    Another possibility is that the USSC will punt. They could rule that the defendants have no standing to appeal, in which case there is (according to a lawyer I know) a group waiting in the wings who *would* have standing to defend Prop. 8 and the whole process starts over at the trial court level.

    Or, of course, the USSC could find something else wrong in how the case was handled and send it back for retrial on some grounds or other.

  • abb3w

    Incidentally, anyone have a link to a PDF of the actual brief?

  • “A group of more than 70 FORMERLY prominent Republicans…”.

    Meg Whitman, now that it makes no difference, etfuckingcetera….

    Oh, I’ll be thrilled to accept their cringeworth, “support”, but I will still “douchebag” any time that I read most of their names in print.

  • dogmeat

    except when Grandma drops the “N” word at Christmas dinner. That’s a little uncomfortable.


  • vmanis1

    If I were an American, I doubt I’d ever vote for a Republican candidate. My own politics are pretty much in the social democratic camp, and I have too many disagreements with Republican orthodoxy on economic, environmental, and governance grounds ever to support one of their candidates. That said, I find it more useful to dialogue with conservatives in order to see where common ground can be found than just to dismiss them as idiots.

    Human rights is one area where one can reach across ideological grounds. In the 1980s, I was very active in the struggle for LGBT rights in British Columbia, and in the process got to know the then-chair of the BC Human Rights Commission. She was a political appointee of a right-wing government, but she was also sincere about doing her job effectively. Although it took a change in government to add sexual orientation to the legislation, she became a strong advocate of our position, despite our many differences in politiical beliefs.

    So I would personally be inclined to accept, with great thanks, the contribution of the Republican signatories to the brief, and not inquire too deeply as to their motivations. The goal is to achieve social change, not to win meaningless points in a urination competition. Allies are always welcome.

    As for whether the GOP will be claiming credit for marriage equality in 50 years, I don’t care. I’m unlikely to be alive then, as I would be 111 years old. To be honest, the way the GOP is presently going, I very much doubt it will even exist in 5 years, let alone 50.

    I have used the word `conservative’ here with a technical meaning, that found in any political science text. Wingnuts are not conservative in any sense of the word, and still deserve all the ridicule we can direct at them, coupled with watchfulness to make sure they don’t gain ground.

  • tmscott

    [From #6] “Please don your protective raincoats, face shields and rubber gloves.”

    Yeah, because they’re calling it rain, but it smells like urine to me.


  • In the late 1980s, Barry Goldwater said that same sex couples should be allowed to get married, because marriage was a conservative value and conservatives should promote such values.

    Let that sink in for a moment: the one-time Exemplar of Conservative America held positions 25 years ago that, today, make him sound like a bleeding-heart hippie.

  • Ichthyic

    Oh the infighting is going to be glorious as the more sensible Republicans try and reclaim their party from the religious right and tea baggers.

    why bother I say.

    since the democratic party essentially has adopted the economic position of the GoP during their “glory” years, why not just become a democrat instead?

    then you’ll have democrats as one party, and wingnuts as the other.

    that way the wingnuts have their representation in Congress, which is only fair, but it will never get above 30%, which is fair to everyone else.

  • This is only going widen the schism in the GOP between those who want to remain ideologically pure and those who want to win elections.

    This is good news for progressives because now there’s no excuse for any democrats to triangulate or “evolve” on this issue. Who knows? Maybe we can drag that Overton window back to the center yet.

  • Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @ Ichthyic #3; and DC #22:

    I don’t really think this is about a polictical stunt or not being true to values. I understand why you might think that, but I’m not of that opinion.

    Rather, I’m of the opinion that these are people that have for years been unable to say such things in their party environments. Meaning that for **decades** they have been lying to do what they thought would help get themselves/their party electoral victories, but on this one issue they see a combination of an important moment (if they rule against queer marriage now, it won’t be until at least 3 positions on the court change before they take it up again, and that could take quite a number of years) AND enough change in their personal circumstances (many are retired from public positions and are in a corporate environment where hatin’ the gay doesn’t get as much business as hatin the gay gets votes in certain districts) AND enough change in the political environment that they can express their deeply held personal values without any cost to themselves.

    No, I don’t think that they’re lying. I just think that they wouldn’t be honest if there was any substantial chance of a real cost to themselves. In fact, I think that more than one of them has said either internally or to some of the others that there’s a cost to waiting **too** long, b/c it’s one thing to be on the wrong side of history while the battle’s being fought and another to continue to fight the battle after it’s obvious to everyone you’ve lost. The more of their circle – including their high-paying clients – is gay (I’m sure they aren’t queer) or supportive of legal equality, the more they risk a social cost by continuing to let their past statements stand as testament to a belief in the diminished humanity of queer folk.

    And while they don’t like legal inequality, what they really hate is paying any cost themselves. So, in the nick of time, when advocating for gay marriage is finally in their personal interest and not a second before, they “speak up”.

    That’s the very definition of too little, too late.

  • Childermass

    “four former governors and two members of Congress”

    In other words, pretty much no significant support among Republicans.

    Here are the stats: 30 Republican governors (none signed) and there must be at least hundred former Republican governors (four signed).

    There are 232 Republicans in the U.S. House of Representatives and 45 in the U.S. Senate. And the quote says the two of them signed.

  • Randomfactor

    No, I don’t think that they’re lying.

    The question is, that if they’ve been lying in the past, why should we believe their motives are pure now? Liars lie. The question is never “are they lying?” it’s “what are they lying about?”

  • @ Modus # 7,

    One of my 79-year-old mom’s beaus dropped the N bomb at Christy’s dinner a fews ago. He hated Obama, but because of his policies, not because of the whole ni**er thing, you see.

    I’m sure, if pressed, the only “policy” he could have named is “Soshulism!”

  • fifthdentist, old people are delightful.

  • Ichthyic

    the only “policy” he could have named is “Soshulism!”

    tell him he’s a socialist, too.

  • abb3w

    Gaaaggggh. ACTUAL F*CKING AMICUS BRIEF. Damn, that took a while.