Which prominent Republicans are signing a Supreme Court brief supporting same-sex marriage?

"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 [a ban on same-sex marriage] 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....

Actually, this isn't such an impressive list of names. It seems pretty pathetic to me.

[T]he 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.”

Or it suggests Republican governors of New Jersey and Massachusetts aren't that conservative.

But then there's Huntsman:

Jon M. Huntsman Jr., the former Utah governor, who favored civil unions but opposed same-sex marriage during his 2012 presidential bid, also signed. Last week, Mr. Huntsman announced his new position in an article titled “Marriage Equality Is a Conservative Cause,” a sign that the 2016 Republican presidential candidates could be divided on the issue for the first time.

This is the first reference I've seen to Huntsman's article, and I'm constantly scanning the web for news stories, especially on the subject of same-sex marriage, especially with the Supreme Court decision pending. Why isn't Huntsman more influential? It's uncanny that this man, a former governor, very nice looking, doesn't get more play among conservatives. Here he is trying to tell conservatives what's conservative, and I don't have to read his article or any response to it to know that conservatives will reject what he's saying out of hand, designating him not a conservative.

But how about not rejecting it out of hand? Put aside your Huntsmanophobia for a moment. He connects marriage equality to free market capitalism:

Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans.

This is both the right thing to do and will better allow us to confront the real choice our country is facing: a choice between the Founders’ vision of a limited government that empowers free markets, with a level playing field giving opportunity to all, and a world of crony capitalism and rent-seeking by the most powerful economic interests.

Adam Smith was not only an architect of the modern world of extraordinary economic opportunity, he was a moralist whose first book was The Theory of Moral Sentiments. The foundation of his thought was his insight that free markets and open commerce strengthened our moral fiber by reinforcing the community of shared and reciprocal economic interests. Government, he thought, had to be limited lest it be captured and corrupted by special business interests who wanted protection from competition and the reciprocal requirements of community.

We are at a crossroads. I believe the American people will vote for free markets under equal rules of the game—because there is no opportunity or job growth any other way. But the American people will not hear us out if we stand against their friends, family, and individual liberty.

I'd say that's a bit under-theorized. There's so much padding at the beginning of the article — Republicans need to win over the younger generation and so forth. The ending is a mishmash — a mere hint of an idea that might make sense. What does he say other than equality is good and free market capitalism is also good? There's this odd concession that law doesn't matter, because this is something that people are going to understand emotionally. Rather than make an "abstract" legal argument — why is law only abstract? — he appeals to emotion. You should be for equality because equality is the right principle. First of all, that's abstract. Secondly, the go-with-your-heart, emotion-is-the-answer approach is what leads so many people to oppose same-sex marriage.

The other argument seems to be that the economic issues are what's really important, so let's get this pesky marriage issue behind us so we can move on. People will "vote for free markets" if there are conditions of equality. That suggests that marriage equality is the kind of equality in the marketplace that Adam Smith was talking about. Is it? Maybe, but Huntsman doesn't even attempt to connect that all up. As I said: under-theorized. That's my abstract legalistic view and my from-the-heart emotional view.

"Alongside that do-gooder instinct is a strong desire for fairness because, being out in the world, reporters encounter a great deal of unfairness."

"We want to expose that and even rub your noses in it. In a way, we’re shouting, through our stories: 'This is unfair! Somebody do something!' Conservative and liberal journalists alike feel this way...."

That’s why many journalists have a hard time giving much voice to those opposed to gay marriage. They see people opposed to gay rights today as cousins, perhaps distant cousins, of people in the 1950s and 1960s who, citing God and the Bible, opposed black people sitting in the bus seat, or dining at the lunch counter, of their choosing.

Says Patrick B. Pexton, the Washington Post ombudsman.

The Obama administration's brief in the Supreme Court's DOMA case.

Lyle Denniston summarizes the briefs filed yesterday in United States v.Windsor — the case attacking the federal law that excludes same-sex couples, married under state law, from being treated as married for the purposes of federal benefits and tax laws.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians.  Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.”  And Friday’s brief defended that approach energetically.



This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court.  The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard.  “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.”  While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”

More detail about the argument for heightened scrutiny at the link, and you can read the whole brief here (PDF).

There's a second pending Supreme Court case dealing with California's Proposition 8, and although the administration hasn't filed a brief in that case, the brief Windsor refers to Prop 8 as it makes the argument for heightening scrutiny, which — under standard equal protection doctrine — looks at a number of factors including whether a group has been excluded from political power.  From the brief:

Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action....

[There is no] convincing record of political power rendering protection unnecessary.

The brief cites various recent successful political efforts against same-sex marriage, including this footnoted reference to Prop 8:

By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage.... In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.

My guess is the Court won't heighten scrutiny, but it will find an equal protection violation in both of the cases. I predict a 6-3 decision.

New ad includes Laura Bush, Colin Powell, and Dick Cheney expressing support for same-sex marriage.

Laura Bush didn't approve of the use of this video clip (which comes from a 2010 interview with Larry King) and she's voiced her objection to it:



Who knows what she secretly thinks, but officially, she's saying you shouldn't have used me without asking. Of course, the group that made the ad — the Respect for Marriage Coalition — has the right to appropriate this clip and use it in their political message. Imagine how hard it would be to make political ads if you couldn't use clips like this. I suspect that secretly she's happy to influence opinion this way — especially as she's able to hold herself at some distance from politics. She clearly likes to seem modest and completely unpushy, as you can see in the longer clip from the Larry King show:



What a terrible shame that the Republican Party didn't accommodate itself to this idea at least 10 years ago. Really, it's a shame they didn't buy in even earlier, 18 years ago, when Andrew Sullivan's "Virtually Normal" came out. At the time, the left-liberals I knew were antagonistic to the institution of marriage and viewed Sullivan's contribution as an unwelcome conservative intrusion on the gay rights movement, which they saw as belonging within a left-wing ideology that transcended traditional institutions. Back in the 90s, I sat through serious, lawyerly presentations aimed at stopping the marriage equality proponents from changing the focus of the movement. There was a wonderful opportunity then for conservatives to embrace the issue, and they missed it.

The Republican Party saw the advantage elsewhere, and now they're stuck with the result.

UPDATE: The Respect for Marriage Coalition withdraws the ad.

"41 states prohibit same-sex marriage. But only 20 of those 41 states have filed briefs in support of the constitutionality of Proposition 8."

"Indiana is the lead party on a brief for 19 states, and Michigan filed a brief of its own."

Compare this level of state participation with, for example, the amicus brief filed by all 49 other states in Maryland v. King (to be argued February 26), in support of Maryland’s argument that a state does not violate the Fourth Amendment by collecting and analyzing the DNA of persons who have been arrested for, but not convicted of, a criminal offense....

It is further significant, I think, that in 12 of those 21 non-filing states, constitutional amendments prevent the recognition of same-sex marriage via the ordinary political process.  All but one of those amendments was ratified from 2002 through 2008, in anticipation that popular majorities might soon support a change in state law... 

Gomer is gay: Jim Nabors marries his partner of 38 years.

"I haven’t ever made a public spectacle of it.... Well, I’ve known since I was a child, so, come on."

"It’s not that kind of a thing. I’ve never made a huge secret of it at all. My friend and I, my partner, we went through all of this 38 years ago. So I mean, we made our vows and that was it. It was to each other, but nevertheless, we were a couple.”

"Obama Will Include Same-Sex Couples In Immigration Plan."

That's your cue, Republicans, to say something stupid. He's roping you in. Come on. You can't resist!

"They would be explaining what your benefits were, then all of a sudden this embarrassed look would flash across their face like, 'Oh, sorry. I guess this doesn’t apply to you.'"

For the new gay members of Congress, "their freshman orientation sessions were a reminder of just how unequally the law treats them, since the entity that cuts their paychecks and provides benefits — the United States government — is barred from recognizing their relationships."

I wish members of Congress would have more opportunities to experience the embarrassment of having to live with the people their laws oppress. And I don't mean just things having to do with whether their colleagues are getting paid enough.

"An evangelical pastor from Atlanta announced Thursday that he would not give the benediction at President Obama’s swearing-in ceremony..."

"... after a sermon he gave on homosexuality in the mid-1990s resurfaced earlier this week."

In that sermon, the Rev. Louie Giglio called for Christians to “firmly respond to the aggressive agenda” of some in the gay community and warns that widespread gay marriage ”would run the risk of absolutely undermining the whole order of our society.”

State appeals court says the Wisconsin domestic partnership law doesn't violate the state constitution.

The state constitution was amended to limit marriage to opposite-sex couples and to forbid the creation of other legal status for same sex couples if it's substantially similar to marriage. The court said:

"The same-sex domestic partnerships created by the legislature are substantially different than marriages because, among other differences, domestic partnerships carry with them substantially fewer rights and obligations than those enjoyed by and imposed on married couples"...

Obama promises "meaningful action... regardless of the politics."

Noted.

Obama's statement is...
	Meaningful and not political.
	Meaningful and political.
	Not meaningful but political.
	Neither meaningful nor political.
pollcode.com free polls

"Meaningful" was a vogue word circa 1970s. Back when people were acting as if sex outside of marriage was new idea and "pre-marital sex" seemed to be missing the point, the term "meaningful relationships" had its day. That faded over time. I'm not sure exactly how or when. It wasn't just sex but also politics that were supposed to be meaningful. One imagined wellsprings of inner satisfaction opening up. It was almost even religious. Or not religious, but spiritual. A rabbi wrote a book called "The Politics of Meaning." It turned Hillary Clinton on and made Michael Kelly write a NYT article titled "Saint Hillary."

Driven by the increasingly common view that something is terribly awry with modern life, Mrs. Clinton is searching for not merely programmatic answers but for The Answer. Something in the Meaning of It All line, something that would inform everything from her imminent and all-encompassing health care proposal to ways in which the state might encourage parents not to let their children wander all hours of the night in shopping malls.

That was written in 1993. (Michael Kelly died in 2003, in service as an embedded journalist in Iraq.) In 2008, Jonah Goldberg published a book called "Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning." In 2010, we got our all-encompassing health care, not from Saint Hillary, but from Saint Barack. We called it Obamacare, because Obama cares, cares about meaning, regardless of the politics.

Barack Obama has written 2 books. The word "meaningful" appears once in "Dreams from My Father" ("meaningful time frame") and 7 times in "The Audacity of Hope":

1. "[W]hat binds us together is greater than what drives us apart, and that if enough people believe in the truth of that proposition and act on it, then we might not solve every problem, but we can get something meaningful done."

2. "I have criticized the [Bush] Administration for lacking a meaningful health-care agenda...."

3. "[T]he standards and principles that the majority of Americans deem important in their lives, and in the life of the country—should be the heart of our politics, the cornerstone of any meaningful debate about budgets and projects, regulations and policies."

4. "[W]e already have hard evidence of [school] reforms that work... meaningful, performance-based assessments that can provide a fuller picture of how a student is doing...."

5. "[A lesbian] knew when she decided to support me that I was opposed to same-sex marriage, and she had heard me argue that, in the absence of any meaningful consensus, the heightened focus on marriage was a distraction from other, attainable measures to prevent discrimination against gays and lesbians."

6. "[W]here there’s strong evidence of prolonged and systematic discrimination by large corporations, trade unions, or branches of municipal government, goals and timetables for minority hiring may be the only meaningful remedy available."

7. "I wanted to call [an immigration activist group] and explain that American citizenship is a privilege and not a right; that without meaningful borders and respect for the law, the very things that brought them to America... would surely erode...."

What meaning is contained in "meaningful" for Barack Obama, specifically, and for all of us?

Something terrible has happened. Children were killed, seemingly senselessly. We are bereft of meaning. The President deems it meaningful to speak, to offer us meaning, not for why that happened, but in the future. An action has horrified us, an action in the past, which we cannot change. But in the future, actions can be taken. We can do something there in that place of hope. So meaning, meaning... where is meaning? Put it in the future, where the action is. Meaningful action.

There, now. Are you salved? Are you saved? Is there meaning?

The issue of standing in the Supreme Court's same-sex marriage cases.

Linda Greenhouse explains the 2 standing problems in a way that is accessible to the general reader.

The Windsor case is especially striking, because the plaintiff's stake in the case is knock-you-over-the-head clear and tangible:

Ms. Windsor owes more than $300,000 in federal estate tax on the property left to her by the woman to whom she was legally married in the eyes of New York State. Had she been married to a man, she would have inherited the property tax-free. With DOMA barring the federal government from recognizing same-sex marriage, and the Obama administration taking the position that it will enforce the law until the Supreme Court or Congress tell it otherwise, there certainly seems to be a controversy between the parties sufficient to meet the test of Article III jurisdiction.

But the Obama administration declines to defend the constitutionality of DOMA, and Windsor won in the lower courts, making things nonadversarial, and the federal courts can only resolve actual controversies between the parties. But it's not as if DOMA has gone away. It still affects people, and Congress isn't about to repeal it.

Democrats in Congress wanted no part of defending DOMA, even though the statute had passed both houses in 1996 by big bipartisan majorities and was signed into law by President Bill Clinton. So a five-member House leadership body called the Bipartisan Legal Advisory Group decided, over the objections of its two Democratic members, to take over the executive branch’s abandoned defense of DOMA....

The question in the case is whether this Bipartisan Legal Advisory Group can take over defending the law and thereby preserve the adversarial quality of the case. Obviously, it will be litigated with intensity and excellence. The Group has Paul Clement as its lawyer. But that's not the point in standing doctrine.

"Conservative Pundits: Accepting Same-Sex Marriage Is Common Sense."

Trend watch.

Of course, same-sex marriage started out as a conservative idea, and lefties resisted. That was back in the day when marriage was patriarchy and oppression.

Here's a prediction: Once gay marriage becomes the norm, the left can get back to critiquing marriage. That topic got backburnered.

ADDED: Recommendation: Conservatives should get on the side of same-sex marriage now, make it part of what is traditional, and embrace the "marriage" ideal generally (and for all) going forward. The left will go off in another direction, and good old marriage will be yours once again.

AND: If you don't remember when lefties called it right-wing to support gay marriage and gays in the military, read "Richard Goldstein’s Heresy Hunt," and article from 2001, referring to a Village Voice writer who despised that notorious right-winger, Andrew Sullivan::

... Goldstein decried the so-called "gay right" because he says that they bring the issues of gay marriage and gays in the military to the forefront, making them more prominent, while they should be arguing for an end to workplace, housing and public accommodation discrimination. "They believe in civil equality, not equal opportunity," he said....

... Goldstein said we should revile the gay right because they are "a masculinist group of gay writers." They are men and women who worship and aspire to traditional masculinity and "cannot see beyond their privilege." He then equated masculinism with marriage-and-military advocates: "In times of war, masculinist values come to the forefront and feminist values recede.... If these people prevail.... the masculinist version of homosexuality will come to dominate the movement. ... It is the most dangerous thing we face today, I believe."

And watch "The Great Gay Debate" from 2002, with Andrew Sullivan, attacked from the left, at his fiery best. Conservatives missed a great opportunity a decade ago.

"Justice Antonin Scalia believes the law can and should enforce moral standards," says David Savage, incorrectly.

In the L.A. Times. Why is it so hard to read Scalia's Lawrence v. Texas dissent? Experts — purported experts — like Savage, insist on seeing something that Scalia directly tells us he is not saying. He says laws may rest on morality, not that they should:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.... I would no more require a State to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so....

And by the way, Scalia has already committed to the proposition that Lawrence dictates the end of the exclusion of gay couples from legal marriage:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. 

The majority had claimed that Lawrence did not "involve” the issue of gay marriage, and Scalia said that could only make sense if you think "principle and logic have nothing to do with the decisions of this Court." (Of course, Scalia dissented in Lawrence and may decline to adhere to it, but it won't be because he thinks laws should enforce morality. It will be because he thinks courts should not strike down laws simply because there is no support for them other than morality.)

ADDED: Another post about Scalia, law, and morality, and I rather laboriously spell out some legal distinctions in the comments, here.

"That the Supreme Court is taking this up is truly exhilarating, but I’m very nervous and unnerved by the possibilities of what could come out of this."

"It is frightening to have our basic rights as citizens in the hands of just nine people, when four or five of them are deeply ambivalent, at best, about our very existence."

First of all, if you lose in court, you could still win in Congress. But second,  you probably won't lose. In fact, I predict a win by more than a 5-4 margin.

Waiting for an order granting Supreme Court review in a same-sex marriage case. [UPDATE: Granted!!]

They're live-blogging the anticipation over at SCOTUSblog.

The Conference is over for today; that was some time ago. What's going on now is composing orders, if any are to be released today. Simple grants are easier to write than, say, consolidated grants among several picked cases....

I expect the Court to act today on the gay-marriage petitions for two reasons. First, it has to rule on the petitions at this Conference if they are going to be argued in March. Otherwise, it has to wait until April. And the Court would prefer to have more time between the argument and when the Court ends the Term in late-June.

UPDATE:  "Prop. 8 is grant[d]. So is Windsor. Those are the only two marriage cases granted."

Prop. 8 is granted on the petition question -- whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop. 8 have standing in the case under Art. III.

In Windsor, the government petition (12-307) is the one granted. In addition to the petition question -- whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

AND: "The Court... has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues."

Also legal starting today in Washington...

... same-sex marrying.

"Again, no gay marriage orders."

"The Supreme Court on Monday released additional orders from its Friday Conference, but the list did not include any action on the ten cases dealing with the same-sex marriage issue. It now appears that those cases will be rescheduled for the Conference this Friday morning."

10 cases. They've got to resolve this, no?

If DOMA is unconstitutional, what kind of past employee benefits will need to be paid?

Don't assume the effect of a new decision will be only prospective. Consider this report of a ruling by the Judicial Council of the Ninth U.S. Circuit Court of Appeals:

... Christopher Nathan, 39, of San Francisco, a law clerk for U.S. Magistrate Maria Elena James, sought [health insurance] coverage for his spouse, Thomas Alexander, 40.... [H]e was turned down by the Administrative Office of the U.S. Courts because the 1996 law bars federal recognition of same-sex unions.

In April, Chief U.S. District Judge James Ware said the denial violated the federal court's rules against discrimination based on sexual orientation and gender, and ordered the court to reimburse Nathan for the costs of buying private insurance.

The Judicial Council, the final authority in the administrative review process, went a step further in this week's order and said DOMA has been held unconstitutional by a San Francisco federal judge in another employee's case. The three-judge panel ordered the court [that is, his employer] to determine how much it owes Nathan and then pay him within 10 days.

"Freedom From Religion Foundation sues IRS for not enforcing electioneering restrictions on churches."

"The lawsuit cites 'open and notorious violations' of these electioneering restrictions by churches since 2008, including 'blatantly partisan full-page ads' from the Billy Graham Evangelistic Association that ran in papers throughout the country leading up to the Nov. 6 election."

In the ad, Graham urges people to vote "for those who protect the sanctity of life and support the biblical definition of marriage between a man and a woman."

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, says, "Everybody knows what he was talking about: Obama endorsing same-sex marriage."

Full text of complaint at the link.