Anthony Kennedy, Gay, Gay Marriage, John Roberts, Politics, SCOTUS, Seth Waxman, Supreme Court, Ted Olson

Leading Republicans Send a Valentine to Justice Kennedy on Gay Marriage

A few years ago, I was covering some conservative legal or political conference where Ted Olson was scheduled to appear. At some point before his scheduled appearance, it was announced that he’d be unable to attend. It was chalked up to a scheduling conflict, but some wondered: had Olson withdrawn because of a fear that he’d be persona non grata? This was not long after he had filed the case that’s now before the U.S. Supreme Court as Hollingsworth v. Perry, and some conservatives were unhappy with the former solicitor general’s taking up the cause of marriage equality, viewing it as a betrayal.

Oh how times have changed. Now prominent Republicans are lining up to support the cause of marriage equality in the Supreme Court of the United States.

Yes, February 14 was almost two weeks ago. But on Thursday, a bunch of leading conservatives will send Justice Anthony M. Kennedy a valentine….

Well, it’s not officially a valentine; it’s styled as an amicus brief. From the New York Times:

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.

“Civil war” is no exaggeration. Does anyone else remember the epic slugfest at the 2006 Federalist Society conference? Fun times.

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. The court will hear back-to-back arguments next month in that case and another pivotal gay rights case that challenges the 1996 federal Defense of Marriage Act.

It’s interesting that the boldface names are lending their support to same-sex marriage through Perry, the Prop 8 case, rather than Windsor, the DOMA challenge, since Perry is the tougher sell. But it makes a certain kind of sense; their support is more sorely needed in Perry.

So who’s on board with this amicus brief? It’s an impressive group:

Among [the 75 and counting signers] 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….

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.

Let’s hope that Republican opinion continues to evolve on this issue. Otherwise, some of the early 2016 contests could be tough sledding for marriage equality supporters.

Conventional wisdom holds that amicus briefs amount to little more than tree murder. But this one might be different, according to Supreme Court guru Tom Goldstein:

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.”

Hmm… a conservative justice who believes in marriage but also worries about animus against minorities? I wonder who that might be? (And no, I’m not thinking of Chief Justice John Roberts. The latest rumors I’m hearing are that JGR is unlikely to provide a sixth vote for marriage equality; he’s content for now to be the man who saved Obamacare.)

Who are the lawyers writing the Republican brief? Think of it as another bipartisan “Dream Team” (à la Ted Olson and David Boies, the Bush v. Gore adversaries who teamed up to file the case in the first place).

The lead authors are Seth Waxman, who served as solicitor general during the Clinton Administration, and Reginald Brown, who served as associate White House counsel during the second Bush Administration. Also working on the brief are partners Mark Fleming and Paul Wolfson, who have both argued before and clerked for the Supreme Court; counsels Alan Schoenfeld and Felecia Ellsworth, former clerks to then-Judge Sotomayor and Chief Justice Roberts, respectively; and associates Dan Aguilar, Rebecca Bact, and Elisabeth Oppenheimer. This is the appellate advocacy equivalent of the Les Mis movie cast, a giant agglomeration of talent.

Good luck to the WilmerHale team as they finalize the brief for filing tomorrow. Let’s hope the valentine succeeds, in the name of love. Justice Kennedy, will you be mine?

Republicans Sign Brief in Support of Gay Marriage [New York Times]

Earlier: The Gay Divorcees: From Marriage Equality to Divorce Equality
WilmerHale’s Warm Welcome — for Conservatives

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