Editorial: Courting the Court; Support for Gay Marriage Broadens

News that more than 100 prominent Republicans have signed on to a legal brief arguing that gay people have a constitutional right to marry provides more evidence of just how far and how fast this cause has advanced.

Granted, the party’s official position is that the Constitution should be amended to define marriage as “the union of one man and one woman.” But the amicus, or “friend-of-the-court,” brief filed this week with the U.S. Supreme Court strongly signals that the GOP’s days of implacable hostility to gay marriage are numbered.

The brief was filed in support of a lawsuit that seeks to overturn California’s Proposition 8, a ballot initiative that bars same-sex marriage, and all similar bans. The Supreme Court will consider the suit this month along with another key gay rights case. That one seeks to invalidate the federal Defense of Marriage Act (DOMA), which was passed in 1996 and which defines marriage for the purposes of the federal government as the union of a man and a woman.

Those signing the brief include top advisers to former President George W. Bush and 2012 presidential nominee Mitt Romney, four former governors and several former members of Congress, according to The New York Times.

The signers pretty clearly do not view themselves as political heretics. In fact, the main argument that the amicus brief makes is that same-sex marriage promotes such conservative values as limiting government, maximizing individual freedom, and advancing the interests of stable family life.

Ken Mehlman, a former chairman of the Republican National Committee who is gay and who worked to gather signatures for the brief, told The New York Times, “We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8.”

How much weight this will carry with the court is anybody’s guess, but one educated one comes from Tom Goldstein, who runs a Web site that analyzes Supreme Court cases and who told the Times that the brief “has the potential to break through and make a real difference.” He thinks that if the decision is close, a conservative justice swayed by just such arguments may play a pivotal role.

Ironically, the position adopted by the amicus brief goes beyond the one enunciated by President Obama, whose views on the subject have evolved to the point of endorsing gay marriage but saying that it’s a matter that ought to be left to the states. However, the administration on Thursday did file a brief of its own arguing on somewhat narrower grounds that Proposition 8 ought to be overturned.

We’re not predicting that the Supreme Court is about to pronounce the death of DOMA and the life of gay marriage. But it seems clear which way the tide of history is running. Several polls indicate that a majority of Americans now favor gay marriage, up from one third only a decade ago, and that 70 percent of Americans under the age of 30 endorse it. Sooner or later, the law will catch up with cultural and social change.

We can only hope it is sooner, so that gay Americans don’t have to wait much longer for society to sanction their devotion to the person they love.