The brief’s signatories include former Republican National Committee chairman Ken Mehlman, conservative pundits S.E. Cupp and Alex Castellanos, former White House chief of staff Ken Duberstein, former Mitt Romney senior advisers Beth Myers and Carl Forti, conservative economists Doug Holtz-Eakin (formerly director of the Congressional Budget Office) and Greg Mankiw (formerly on the Council of Economic Advisers), former senator Alan Simpson (R-Wyo.), former homeland security adviser Fran Townsend and former Massachusetts state Senate minority leader Richard Tisei. The presence of an esteemed general suggests that there is no segment of society in which gay marriage is not gaining acceptance. There are on the list centrist Republicans, more libertarian figures and even social conservatives. In a phone interview Mehlman said, “I think the diversity of the people is a reflection of what we have seen which is increased support in every demographic [for gay marriage].”
In the brief, the signatories argue that they “have concluded that marriage is strengthened, and its value to society and to individual families and couples is promoted, by providing access to civil marriage for all American couples—heterosexual or gay or lesbian alike. In particular, civil marriage provides stability for the children of same-sex couples, the value of which cannot be overestimated. In light of these conclusions, amici believe that the Fourteenth Amendment prohibits States from denying same-sex couples the legal rights and responsibilities that flow from the institution of civil marriage.” They argue that their belief in judicial restraint nevertheless is informed by their understanding that our “constitutional tradition empowers and requires the judiciary to protect our most cherished liberties against overreaching by the government, including overreach through an act of legislature or electorate. That principle, no less than our commitment to democratic self-government, is necessary to individual freedom and limited government.”
The signatories also argue from precedent that marriage is a fundamental right that enhances liberty. (“For those who choose to marry, the rights and responsibilities conveyed by civil marriage provide a bulwark against unwarranted government intervention into deeply personal concerns such as medical and child-rearing decisions.”) The brief contends, “It is precisely because marriage is so important in producing and protecting strong and stable family structures that the goal of strengthening families favors civil marriage for same-sex couples.” They make the case that even under the lowest level of 14th Amendment scrutiny, banning gay marriage cannot be defended:
Amici do not believe there is a legitimate, fact based justification for excluding same-sex couples from civil marriage. Over the past two decades, the arguments presented by proponents of such initiatives have been discredited by social science, rejected by courts, and contradicted by amici’s personal experience with same-sex couples, including those whose civil marriages have been legally performed and recognized in various States. Amici thus do not believe that any “reasonable support in fact” exists for arguments that allowing same-sex couples to join in civil marriage will damage or distort the institution, jeopardize children, or cause any other social ills. Rather, the facts and evidence show that permitting civil marriage for same sex couples will enhance the institution, protect children, and benefit society generally. Banning marriage for same-sex couples, in contrast, undermines these critical societal goals: Such bans impede family formation, harm children, and discourage fidelity, responsibility, and stability.
Put differently in layman’s terms, marriage confirms benefits and there are insufficient policy reasons to deprive gay couples of those benefits. Mehlman says, “The more people see gay couples getting married, the more they will see that marriage is a good thing.” With marriage, he says, “Freedom advances. Family values advance.” Mehlman thinks a decision in favor of gay marriage will be readily accepted. “I’ve noticed Republicans and conservatives respect the law,” he says of the reaction to previous cases. Indeed, it is remarkable how little discussion of gay marriage there has been in the presidential race. While potential candidates continue to voice their view that they “believe in traditional marriage,” many — including Wisconsin Gov. Scott Walker, New Jersey Gov. Chris Christie and former Florida governor Jeb Bush — have all affirmed that they abide by court decisions. There is no real movement to defy the courts, and given the shift in opinions, it is nearly inconceivable that enough states could be induced to sign up for a constitutional amendment banning gay marriage.
Unlike abortion, which even proponents of abortion rights usually concede is a bad thing, gay marriage — no matter how its opponents might struggle — has not proved to be destructive or harmful in states where it has been adopted. The premise that gay marriage harms heterosexual marriage has never been very compelling. The longer Americans live with gay marriage, the less of an issue it seems to become. Americans remain a tolerant and accepting people. One strongly suspects that the court will agree with the signatories and thereby put the issue to rest as a legal matter. For many Americans, it is already a non-issue, and I agree with Mehlman that the rest will acknowledge once the court speaks that there is no turning the clock back.