Box Turtle Bulletin

Final Tally: 131 Republicans Sign Brief Opposing Prop 8

The list includes Mormon former Utah governor and GOP presidential nomination candidate, former New Mexico governor and presidential candidate Gary Johnson, former Reps. Mary Bono Mack, Jom Kolbe, former Massachusetts governor William Weld, former New Jersey governor and EPA administrator Christine Todd Whitman, former deputy defense secretary Paul Wolfowitz, former California gubernatorial candidate Meg Whitman, columnist David Frum, Clint Eastwood, and Mary Cheney (but not her father). Sadly, the list only includes seven current office holders: Reps. Richard Hanna (NY), Ileana Ros-Lehtinen (FL), New Hampshire State Sens. John Reagan and Nancy Stiles, Wyoming State Reps. Ruth Ann Petroff and Dan Zwonitzer, and New York State Sen. Mark Grissanti, who cast the pivotal vote allowing same-sex marriage in New York.

It’s easy to get caught up in who signed and who didn’t sign, the actual arguments in the brief (PDF: 130KB/42 pages) have mostly been overlooked. Which is a shame, because these arguments appear to be addressed to conservatives specifically:

Amici do not denigrate the deeply held social, cultural, and religious tenets that lead sincere people to take the opposite view (and, indeed, some amici themselves once held the opposite view). Whether same-sex couples should have access to civil marriage divides thoughtful, concerned citizens. But this Court has long recognized that a belief, no matter how strongly or sincerely held, cannot justify a legal distinction that is unsupported by a factual basis, especially where something as important as the right to civil marriage is concerned. Amici take this position with the understanding that providing access to civil marriage for same-sex couples — which is the only issue raised in this case — poses no credible threat to religious freedom or to the institution of religious marriage. Amici believe firmly that religious individuals and organizations should, and will, make their own decisions about whether and how to participate in marriages between people of the same sex, and that the government must not intervene in those decisions.

Another area in which the brief appears to address anti-gay activists, in particular, directly, is in the misuse of social science research:

Amici do not believe that measures like Proposition 8 rest on a legitimate, fact-based justification for excluding same-sex couples from civil marriage. Over the past two decades, amici have seen each argument against same-sex marriage discredited by social science, rejected by courts, and undermined by their own experiences with committed same-sex couples, including those whose civil marriages have been given legal recognition 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 the institution, jeopardize children, or cause any other social ills. Instead, the facts and evidence show that permitting civil marriage for same-sex couples will enhance the institution, protect children, and benefit society generally.

The brief goes very deeply into the argument that marriage is good for families and children, including children in families with  same-sex parents:

Marriage also benefits children. “We know, for instance, that children who grow up in intact, married families are significantly more likely to graduate from high school, finish college, become gainfully employed, and enjoy a stable family life themselves[.]” Institute for American Values, When Marriage Disappears: The New Middle America 52 (2010); see also id. at 95 … These benefits have become even more critical in recent decades, as marital rates have declined and child-rearing has become increasingly untethered to marriage. See, e.g., Cherlin, American Marriage in the Early Twenty-First Century, 15 The Future of Children 33, 35-36 (2005).

These findings do not depend on the gender of the individuals forming the married couple. Same-sex couples, just like couples composed of a man and a woman, benefit from the security and bilateral loyalty conferred by civil marriage. There is no reason to believe that the salutary effects of civil marriage arise to any lesser degree when two women or two men lawfully marry each other than when a man and a woman marry.

…Moreover, hundreds of thousands of children being raised by same-sex couples5 — some married, some precluded from marrying — would benefit from the security and stability that civil marriage confers. The denial of civil marriage to same-sex couples does not mean that their children will be raised by married opposite-sex couples. Rather, the choice here is between allowing same-sex couples to marry, thereby conferring on their children the benefits of marriage, and depriving those children of married parents altogether.

…It is precisely because marriage is so important in producing and protecting strong and stable family structures that amici do not agree that the government can rationally promote the goal of strengthening families by denying civil marriage to same-sex couples.

The brief also tackles the oft-heard “sincerely held belief” argument:

However firmly and honestly held, the belief that same-sex couples should be treated differently from opposite-sex couples where civil marriage is concerned, by itself, does not provide a permissible justification for a discriminatory law like Proposition 8. The rule that a classification must find support in a legitimate factual justification is central to our constitutional tradition. This Court has long recognized that private beliefs, no matter how strongly held, do not, without more, establish a constitutional basis for a law.

As you can see, the brief includes arguments that we’ve all heard before, but couched in a way to address conservatives especially. That is particularly evident in the final, lengthy section designed to argue that overturning Prop 8 is would not be an act of judicial activism. What I find interesting is the way this brief invokes James Madison and Alexander Hamilton, among others, in what looks to me an attempt to address those who hold the “original intent” view of the Constitution (they’re looking at you, Scalia):

Amici recognize that a signal and admirable characteristic of our judiciary is the exercise of restraint when confronted with a provision duly enacted by the people or their representatives, and it is not the job of this Court “to protect the people from the consequences of their political choices.” National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012). Nonetheless, this Court’s “deference in matters of policy cannot …become abdication in matters of law.” Id. It is this Court’s duty to set aside laws that overstep the limits imposed by the Constitution—limits that reflect a different kind of restraint that the people wisely imposed on themselves to ensure that segments of the population are not deprived of liberties that there is no legitimate basis to deny them. As James Madison put it,

In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.

…It is accordingly not a violation of principles of judicial restraint for this Court to strike down laws that infringe on “fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010). It is instead a key protection of limited, constitutionally constrained government. See The Federalist No. 78 (Hamilton) (“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”); see also Madison, Speech in Congress on the Removal Power (June 8, 1789).

Here is the full list of those who signed the brief:

Kenneth B. Mehlman, Chairman, Republican National Committee, 2005-2007

Tim Adams, Undersecretary of the Treasury for International Affairs, 2005-2007

Cliff S. Asness, Businessman, Philanthropist, and Author

David D. Aufhauser, General Counsel, Department of the Treasury, 2001-2003

Charles Bass, Member of Congress, 1995-2007 and 2011-2013

John B. Bellinger III, Legal Adviser to the Department of State, 2005-2009

Katie Biber, General Counsel, Romney for President, 2007-2008 and 2011-2012

Mary Bono Mack, Member of Congress, 1998-2013

William A. Burck, Deputy Staff Secretary, Special Counsel, and Deputy Counsel to the President, 2005-2009

Alex Castellanos, Republican Media Advisor

Paul Cellucci, Governor of Massachusetts, 1997-2001, and Ambassador to Canada, 2001-2005

David C. Chavern, Business Association Executive

Mary Cheney, Director of Vice Presidential Operations, Bush-Cheney 2004, 2003-2004

Thomas J. Christensen, Deputy Assistant Secretary of State for East Asian and Pacific Affairs, 2006-2008

Jim Cicconi, Assistant to the President and Deputy to the Chief of Staff, 1989-1990

James B. Comey, U.S. Deputy Attorney General, 2003-2005

Jeff Cook-McCormac, Senior Advisor, American Unity PAC

R. Clarke Cooper, U.S. Alternative Representative, United Nations Security Council, 2007-2009

Julie Cram, Deputy Assistant to the President and Director of the White House Office of Public Liaison, 2007-2009

S.E. Cupp, Author and Political Commentator

Michele Davis, Assistant Secretary for Public Affairs and Director of Policy Planning, Department of the Treasury, 2006-2009

Tyler Deaton, Secretary, New Hampshire Young Republicans, 2011-Present

Alicia Davis Downs, Associate Political Director, White House, 2001-2003

Kenneth M. Duberstein, White House Chief of Staff and Assistant to the President, 1981-1984 and 1987-1989

Janet Duprey, New York State Assemblywoman, 2007-Present

Clint Eastwood, Producer, Director, Actor, and Mayor of Carmel, California, 1986-1988

Christian J. Edwards, Special Assistant to the President and Director of Press Advance, 2005-2007

Lew Eisenberg, Finance Chairman, Republican National Committee, 2002-2004

Mark J. Ellis, State Chairman, Maine Republican Party, 2005-2006 and 2007-2009

Elizabeth Noyer Feld, Public Affairs Specialist, White House Office of Management and Budget, 1984-1987

Charles Freeman, Assistant U.S. Trade Representative for China Affairs, 2002-2005

David Frum, Author and Special Assistant to the President, 2001-2002

Reed Galen, Director of Scheduling and Advance, Bush-Cheney 2004, 2003-2004

Richard Galen, Communications Director, Speaker’s Political Office, 1996-1997

Mark Gerson, Chairman, Gerson Lehrman Group and Author of The Neoconservative Vision: From the Cold War to the Culture Wars and In the Classroom: Dispatches from an Inner-City School that Works

Benjamin Ginsberg, National Counsel, Bush-Cheney 2000 and 2004

Josh Ginsberg, National Field Director, Romney for President, 2007-2008

Juleanna Glover, Press Secretary to the Vice President, 2001-2002

John Goodwin, Chief of Staff to Raul Labrador, Member of Congress, 2011-2013

Adrian Gray, Director of Strategy, Republican National Committee, 2005-2007

Richard Grenell, Spokesman, U.S. Ambassadors to the United Nations, 2001-2008

Mark Grisanti, New York State Senator, 2011-Present

Patrick Guerriero, Mayor of Melrose, Massachusetts, and Member of Massachusetts House of Representatives, 1993-2001

Carlos Gutierrez, Secretary of Commerce, 2005-2009

Stephen Hadley, Assistant to the President and National Security Advisor, 2005-2009

Richard L. Hanna, Member of Congress, 2011-Present

Jill Hazelbaker, Communications Director, John McCain for President, 2007-2008

Israel Hernandez, Assistant Secretary of Commerce for International Trade, 2005-2009

Douglas Holtz-Eakin, Director, Congressional Budget Office, 2003-2005

Margaret Hoover, Advisor to the Deputy Secretary of Homeland Security, 2005-2006

Michael Huffington, Member of Congress, 1993-1995

Jon Huntsman, Governor of Utah, 2005-2009, and Ambassador to China, 2009-2011

David A. Javdan, General Counsel, U.S. Small Business Administration, 2002-2006

Reuben Jeffery, Undersecretary of State for Economic, Energy, and Agricultural Affairs, 2007-2009

Greg Jenkins, Deputy Assistant to the President and Director of Presidential Advance, 2003-2004

Coddy Johnson, National Field Director, Bush-Cheney 2004, 2003-2004

Gary Johnson, Governor of New Mexico, 1995-2003, and Libertarian Party Nominee for President, 2012

Nancy L. Johnson, Member of Congress, 1983-2007

Robert Kabel, Special Assistant to the President for Legislative Affairs, 1982-1985

Neel Kashkari, Assistant Secretary of the Treasury, 2008-2009

Theodore W. Kassinger, Deputy Secretary of Commerce, 2004-2005

Jonathan Kislak, Deputy Undersecretary of Agriculture for Small Community and Rural Development, 1989-1991

David Kochel, Senior Iowa Advisor, Mitt Romney for President, 2007-2008 and 2011-2012

James Kolbe, Member of Congress, 1985-2007

Cyrus Krohn, eCampaign Director, Republican National Committee, 2007-2009

Jeffrey Kupfer, Chief of Staff and Acting Deputy Secretary, Department of Energy, 2006-2009

Ed Kutler, Assistant to the Speaker of the House, 1995-1997

Kathryn Lehman, Chief of Staff, House Republican Conference, 2003-2005

Thomas A. Little, Vermont State Representative, 1992-2002 and Chairman of the Vermont House Judiciary Committee, 1999-2002

Daniel S. Loeb, Businessman and Philanthropist

Alex Lundry, Director of Data Science, Romney for President, 2012

N. Greg Mankiw, Chairman, Council of Economic Advisers, 2003-2005

Catherine Martin, Deputy Assistant to the President and Deputy Communications Director for Policy and Planning, 2005-2007

Kevin Martin, Chairman, Federal Communications Commission, 2005-2009

David McCormick, Undersecretary of the Treasury for International Affairs, 2007-2009

Mark McKinnon, Republican Media Advisor

Aaron McLear, Press Secretary to Governor Arnold Schwarzenegger, 2007-2011

Bruce P. Mehlman, Assistant Secretary of Commerce, 2001-2003

Susan Molinari, Member of Congress, 1990-1997

Connie Morella, Member of Congress, 1987-2003, and U.S. Ambassador to the Organization for Economic Cooperation and Development, 2003-2007

Michael E. Murphy, Republican Political Consultant

Beth Myers, Romney for President Campaign Manager, 2007-2008 and Senior Advisor, 2011-2012

Michael Napolitano, White House Office of Political Affairs, 2001-2003

Ana Navarro, National Hispanic Co-Chair, John McCain for President, 2008

Susan Neely, Special Assistant to the President, 2001-2002

Noam Neusner, Special Assistant to the President for Economic Speechwriting, 2002-2005

B.J. Nikkel, Colorado State Representative and Majority Whip, 2009-2012, and District Director for Marilyn Musgrave, Member of Congress, 2002-2006

Meghan O’Sullivan, Deputy National Security Advisor for Iraq and Afghanistan, 2005-2007

Richard Painter, Associate Counsel to the President, 2005-2007

Ruth Ann Petroff, Wyoming State Representative, 2011-Present

Nancy Pfotenhauer, Regulatory Advisor, Romney for President, 2008, and Economist, Presidential Transition Team, 1988

Gregg Pitts, Director, White House Travel Office, 2006-2009

J. Stanley Pottinger, Assistant U.S. Attorney General, Civil Rights Division, 1973-1977

Michael Powell, Chairman, Federal Communications Commission, 2001-2005

Larry Pressler, U.S. Senator from South Dakota, 1979-1997, and Member of Congress, 1975-1979

Deborah Pryce, Member of Congress, 1993-2009

John Reagan, New Hampshire State Senator, 2012-Present

Luis Reyes, Special Assistant to the President and Deputy Assistant to the President, 2006-2009

Tom Ridge, Governor of Pennsylvania, 1995-2001, and Secretary of Homeland Security, 2003-2005

Mark A. Robbins, General Counsel, U.S. Office of Personnel Management, 2001-2006

Kelley Robertson, Chief of Staff, Republican National Committee, 2005-2007

Brian Roehrkasse, Director of Public Affairs, Department of Justice, 2007-2009

Ileana Ros-Lehtinen, Member of Congress, 1989-Present

Harvey S. Rosen, Chairman and Member, Council of Economic Advisers, 2003-2005

Lee Rudofsky, Deputy General Counsel, Romney for President, 2012

Patrick Ruffini, eCampaign Director, Republican National Committee, 2005-2007

Corry Schiermeyer, Director for Global Communications, National Security Council, 2005-2007

Steve Schmidt, Deputy Assistant to the President and Counselor to the Vice President, 2004-2006, and Senior Advisor, John McCain for President, 2008

Adam Schroadter, New Hampshire State Representative, 2010-Present

Christopher Shays, Member of Congress, 1987-2009

Faryar Shirzad, Deputy Assistant to the President and Deputy National Security Advisor for International Economic Affairs, 2004-2006

Ken Spain, Communications Director, National Republican Congressional Committee, 2009-2010

Robert Steel, Undersecretary of the Treasury for Domestic Finance, 2006-2008

Nancy Stiles, New Hampshire State Senator, 2010-Present

David Stockman, Director, Office of Management and Budget, 1981-1985

Jane Swift, Governor of Massachusetts, 2001-2003

Richard Tisei, Massachusetts State Senator 1991-2011, and Senate Minority Leader 2007-2011

Michael E. Toner, Chairman and Commissioner, Federal Election Commission, 2002-2007

Frances Fragos Townsend, Homeland Security Advisor to the President, 2004-2008

Michael Turk, eCampaign Director for Bush-Cheney 2004, 2003-2004

John Ullyot, Communications Director, U.S. Senate Armed Services Committee, 2003-2007

Sally A. Vastola, Executive Director, National Republican Congressional Committee, 2003-2006

Jacob P. Wagner, Chairman, New Hampshire Federation of College Republicans, 2012-Present

Mark Wallace, U.S. Ambassador to the United Nations, Representative for UN Management and Reform, 2006-2008

Nicolle Wallace, Assistant to the President and White House Communications Director, 2005-2008

William F. Weld, Governor of Massachusetts, 1991-1997, and Assistant U.S. Attorney General, Criminal Division, 1986-1988

Christine Todd Whitman, Governor of New Jersey, 1994-2001, and Administrator of the EPA, 2001-2003

Meg Whitman, Republican Nominee for Governor of California, 2010

Robert Wickers, Republican Political Consultant

Paul Wolfowitz, Deputy Secretary of Defense, 2001-2005, and President of the World Bank Group, 2005-2007

Dan Zwonitzer, Wyoming State Representative, 2005-present