Thursday, February 28, 2013

An Evolution on Equality

Want to be blown away? Read this.

More than 80 Republicans and conservatives have attached their names to a brief to be filed with the Supreme Court later this week arguing that same-sex couples have a constitutional right to marry.

First reported last night by The New York Times,the brief will be filed in the Proposition 8 case before the high court. The signees include two Republican members of Congress —Ileana Ros-Lehtinen of Florida and Richard Hanna of New York —as well as a number of former Republican advisors and elected officials. Former Republican presidential candidate Jon Huntsman also attached his name to the brief. Last week,Huntsman, who is Mormon, announced his support for same-sex marriage. They all join Ted Olson, the former solicitor general for President George W. Bush and conservative attorney, who has been leading the suit against California's Proposition 8. [...]

Chad Griffin, president of the Human Rights Campaign and co-founder of AFER, praised the news, declaring in a statement, "We're proud to have these prominent Republicans join Ted Olson in supporting a freedom-based Constitutional argument for equality. None of us —Democrat, Republican or Independent —would want to be told that we can't marry the person we love, and these signatories are blazing the trail for the next generation of fair-minded Republicans still to come."

While a few of the names on the list were expected, there were many surprises. Former EBay CEO, current Hewlett Packard CEO, & 2010 California Gubernatorial Candidate Meg Whitman (R) notably switched her position from support for Prop 8 to support for marriage equality. Former New Jersey Governor and EPA Administrator Christine Todd Whitman (R, no relation to Meg) also signed onto this amicus brief. And as noted above, Former Utah Governor & 2012 Presidential Candidate Jon Huntsman (R) finally announced his support for marriage equality.

Perhaps most surprising are all the former George W. Bush, John McCain, and Mitt Romney staffers who signed onto this amicus brief. Even top Republicans are now realizing that their party's embrace of bigotry in recent cycles is only endangering its future.

Next month, The US Supreme Court will be hearing oral arguments on two marriage cases: the above mentioned law suit challenging California's Prop 8 marriage ban, and the law suit challenging DOMA (the ban on the federal government recognizing gay & lesbian marriages, as well as allowing states to deny recognition of marriages performed in other states).

So why are these Republicans speaking out now? Of course, there are political ramifications, as I hinted at above. However, there's also an important legal argument that can't be dismissed. Towleroad's Ari Ezra Waldman tries to make sense of both.

For us, the freedom to marry sits squarely within the American progressive tradition of fundamental fairness and equality. Constitutional lawyers have special terms -- substantive due process and equal protection -- for those basic concepts and both are on prominent display in AFER's brief to the Supreme Court. The decision to marry, AFER argues, is a right of fundamental importance, one recognized by the Supreme Court 14 times in a diverse array of cases. It is so fundamental that the Court has refused to limit the right of even prison inmates to marry, for example. When a right is so fundamental, any restrictions on that right have to pass a high hurdle to pass constitutional muster; Prop 8 doesn't even clear a low hurdle. Prop 8 also violates equal protection because it treats identical couples differently simply on the basis of their sexual orientation. AFER argues that such discrimination can only be constitutional if it passes a high hurdle --namely, heightened scrutiny -- that puts a considerable burden on Prop 8 proponents to argue that banning gays from marrying somehow advances an important social interest; but the brief makes the correct argument that Prop 8 cannot survive under any level of scrutiny. Of course, raising well-adjusted children encouraging opposite-sex couples to have their children inside marriage are not consequences of keeping gays out of the institution of marriage. Therefore, marriage discrimination must go.

The Republicans who filed their brief in support of the freedom to marry don't disagree with AFER's analysis; in fact, their brief starts from the premise of the existence of the fundamental right to marry. But they chose to emphasize a different part of the American legal and political tradition and imply that Prop 8 is no longer justified rather than never justified. The Republicans argue that the institution of marriage is central pillar of human freedom and limited government, situating themselves within the classically liberal tradition of individual rights. They also argue that although the judicial directive is one of restraint, courts cannot remain blind to developing social science: Prop 8, like other laws that outlived their purposes, is "outmoded" and subject to equal protection challenge because the newest social science evidence suggests that there is no difference between opposite-sex and same-sex couples.

Notably, I agree with where the Republicans' brief ends up -- namely, calling for the end of Prop 8 and all bans on the freedom to marry; but I cannot abide either of the Republicans' arguments. Marriage is not simply about freedom. If it were, why is the state involved in it at all? And, for that matter, why are we stopping at two-person marriages? Plus, Prop 8 is not "outmoded." It was never a constitutionally justified form of social policy. It was always bald discrimination regardless of whether 75 Republicans bought into the biased pseudo-science and outright lies that got Prop 8 passed in the first place.

I also cannot bring myself to embrace the theory that all these Republican signatories have legitimately "evolved" on the freedom to marry. Some of them, including prominent congressional voices from the past decade, came to Congress before "gay marriage" entered the public consciousness. They may have truly evolved, and I heartily embrace their support! But, Republicans like Meg Whitman, who ran for governor of California on a staunch pro-Prop 8 platform just 2 years ago, is either the beneficiary of rapid social chance or a craven politician who never really believed in discrimination but was willing to say anything to get elected. In a way, that form of anti-gay leader is worse than the true believer. The latter has the benefit of honesty of conviction, however disgusting and hateful those convictions might be. The Meg Whitmans of the world were willing to destroy the lives of gays just to achieve power.

But the Republicans' brief may serve an essential legal and political purpose. It is clear that if Prop 8 is going to be declared unconstitutional, it will be because of the vote(s) of one or several of the Court's conservative justices. The Republicans' brief not only gives these justices a conservative legal argument to vote against Prop 8, it also gives them political cover and provides evidence of an emerging consensus across the political spectrum that bans on gay marriage are things of the fringe.

So these signatories likely have a variety of reasons for signing onto this amicus brief. Some truly do have ideal reasons, while others may be doing so for more craven reasons. Nonetheless, all have evolved on this matter.

Yet several prominent Nevada Republicans are still resisting evolution for any reason. Nevada's own federal marriage law suit is called Sevcik v. Sandoval because Governor Brian Sandoval (R) is defending Nevada's Question 2 marriage ban in court. And both Dean Heller & Joe Heck dismissed calls to evolve on marriage equality just last year.

We may very well see "The Supremes" strike down DOMA & Prop 8 (either narrowly or perhaps broadly) this year. And voters have evolved dramatically on marriage equality in just the past three years. So what are Nevada Republicans like Heller, Sandoval, & Heck waiting for? Why keep fighting progress & equality?

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