Thirty years ago, public opinion on same-sex marriage was like public opinion on the iPhone: it didn’t exist.

"Conservative" Judicial Activism for Gay Marriage: With Amici Like These, Who Needs Enemies?


by Micah Watson

A group of distinguished conservative public servants, policy makers, and political operatives has signed an amicus brief saying the US Constitution requires the states to redefine marriage. They argue that this is the truly conservative position—but it takes quite a bit of logical contortion to accept their argument.

Thirty years ago, public opinion on same-sex marriage was like public opinion on the iPhone: it didn’t exist. Starting with Gallup in 1996, and Pew in 2001, polls have tracked Americans’ changing views on the validity of same-sex marriage. Gallup tells us that 55 percent of Americans supported same-sex marriage in May of 2014. That’s more than double the 27 percent who answered affirmatively in 1996. Pew shows a similar trend beginning in 2001: opposition to same-sex marriage has fallen from 57 percent to 40 percent, and affirmation has risen from 35 percent to 52 percent.

Three overlapping groups have been reluctant to embrace this trend: white evangelicals, political conservatives, and Republicans. While support for same-sex marriage among these populations has risen modestly since the 2001, it lags far behind the national average.

But that may soon change. This spring, the Supreme Court will hear arguments in Obergefell v. Hodges about whether the Constitution requires every state to recognize same-sex relationships as marriages. A formidable group of conservatives, moderates, and libertarians has written an amicus brief to the Court, asking the Court to reverse its holding in US v. Windsor (2013) that the federal government may not “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws,” and instead strike down the laws of any state that continues to define marriage as a union between a man and a woman.

The signers consist of a “who’s who” of Republican establishment figures and operatives. Led by former Republican National Committee Chairman Ken Mehlman, the group includes not only moderate Republicans such as former New York City mayor Rudy Guliani, Maine Senator Susan Collins, and libertarian philanthropist David Koch, but also more surprising figures such as the former governor of deeply red Utah, Jon Huntsman, former senator and Clarence Thomas mentor John Danforth, and RedState co-founder and currentFederalist editor Ben Domenech. There are also a slew of high-level political operatives associated with Republican candidates past and present, including top aides for John McCain, Jeb Bush, and Mitt Romney.

Obviously, this brief was drafted with more than Justice Kennedy in mind. Supported by references to Edmund Burke, Alexis de Tocqueville, and Barry Goldwater, the brief is signed by amici supportive of “traditional conservative values” and “limited government.” They declare themselves deeply concerned about family values and the institution of marriage, religious liberty, and judicial restraint. It is a manifesto designed to make same-sex marriage advocacy seem safe and appealing for conservatives who have not yet seen the light.

• The Argument and Its Weaknesses ...
• Three Propositions ...
• No Room for Disagreement ...

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