I cautiously predict that the SCOTUS will use this case to legalize same-sex marriage nationwide. This will likely be the Roe v Wade of gay marriage. I say “cautiously” because I’m not 100% certain in my prediction. There may be one or two liberal
or centrist justices who think the court stepping in and legalizing gay marriage in toto would be a little too bold at this time. But it will happen eventually either way.
Supporters of same-sex marriage hope for a boost this week when dozens of high-profile Republicans, many no longer in office, submit their legal argument to the Supreme Court on why gays and lesbians should be allowed to wed, bucking their party’s platform.
In a move described by one scholar as “inconceivable” just two years ago, more than 80 Republicans have signed the brief to be filed in the case of Proposition 8, a California law banning same-sex marriage, according to the American Foundation for Equal Rights, which is waging the legal battle against the law. The nation’s high court will hear arguments in the case in late March.
The brief will be filed Thursday, according to the Human Rights Campaign, a gay rights group. Additional names were still being added to it, said AFER, which noted one of its lead attorneys on the case was a conservative, former U.S. Solicitor General Ted Olson, who argued for Bush before the Supreme Court after the disputed 2000 presidential election.
Michael Klarman, a Harvard Law School professor and author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage,” called it an “incredibly important development” and noted the brief could influence Justice Anthony Kennedy, whom he said was the swing vote on gay marriage.
“The fact that more and more Republicans are coming out in favor of gay marriage simply confirms how dramatic the shift in public opinion has been — and that is a fact that likely is of great significance to Justice Kennedy,” he wrote to NBC News in an email. “Even two years ago, it would have been inconceivable that this many prominent Republicans would have been willing to buck their party platform on the issue.”
In an article last week, former Republican presidential candidate Huntsman wrote that as governor he had backed civil unions but now was supporting marriage for gays and lesbians.
“The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans,” he wrote. “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.”
Huntsman’s argument echoed parts of the legal brief, which The New York Times — first to report on the brief — said made the case that allowing same-sex marriage would promote conservative ideals of limited government and individual freedom as well as provide the children of gay couples a two-parent home.
The legal brief was dismissed by the National Organization for Marriage, which on Monday pledged $500,000 to defeat Republican lawmakers supporting any law to allow same-sex marriage in Minnesota, a state considering such legislation.
“None of these people are actively in politics. They are not running for office because they know … supporting same-sex marriage will end your career if you’re a Republican,” he said. “There’s overwhelming support for traditional marriage in the Republican Party, that’s why it’s part of the party platform, and any attempt by the establishment to redefine marriage and redefine what it means to be a conservative will mean the death of the Republican party.”
But LGBT groups said the brief was further proof of changing attitudes on the issue. Marc Solomon, national campaign director for Freedom to Marry who saw the brief, said the list included Republicans going back to the Reagan administration.
Steve Schmidt, who worked on the 2004 Bush re-election effort and as chief strategist on McCain’s 2008 presidential bid, has been a “powerful supporter” of same-sex marriage, Solomon said.
“I think most importantly, it’s the broad swath of leaders” on the list, Solomon told NBC News. “We’re no longer just dealing with … one or two ‘mavericks’ who are willing to sort of stick their neck out. …
“This is a big swath of Republicans, of mainstream Republicans, who view the freedom to marry as part of their conservatism rather than something separate from it.”
The Supreme Court will also hear arguments in late March on DOMA, which the Obama administration has encouraged the justices to strike down. In its argument, the federal government noted that Proposition 8 and similar measures in other states was evidence that anti-gay discrimination remained a major problem.