WASHINGTON — 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 Boehner and reflects the civil war in the party since the November election.
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.
The Proposition 8 case already has a powerful conservative supporter: Theodore B. Olson, the former solicitor general under Bush and one of the suit's two lead lawyers. The amicus, or friend of the court, brief is being filed with Olson's blessing. It argues, as he does, that same-sex marriage promotes family values by allowing children of gay couples to grow up in two-parent homes, and that it advances conservative values of “limited government and maximizing individual freedom.”
Legal analysts said the brief had the potential to sway conservative justices as much for the prominent names attached to it as for its legal arguments. The list of signers includes a string of Republican officials and influential thinkers — 75 as of Monday evening — who are not ordinarily associated with gay rights advocacy, including some who are speaking out for the first time and others who have changed their previous positions.
Among them are Meg Whitman, who supported Proposition 8 when she ran for California governor; Reps. 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 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.
Pryce said Monday: “Like a lot of the country, my views have evolved on this from the first day I set foot in Congress. I think it's just the right thing, and I think it's on solid legal footing, too.”
Jon Huntsman, the former Utah governor, who favored civil unions but opposed same-sex marriage during his 2012 presidential bid, also signed. Last week, 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.
“The ground on this is obviously changing, but it is changing more rapidly than people think,” said John Feehery, a Republican strategist and former House leadership aide who did not sign the brief. “I think that Republicans in the future are going to be a little bit more careful about focusing on these issues that tend to divide the party.”
Still, it is clear that Republican backers of same-sex marriage have yet to bring the rest of the party around to their views. Feehery said there are regional as well as generational divisions, with opposition especially strong in the South. Speaking of Boehner, he said: “I doubt very seriously that he is going to change his position.”
Experts say that amicus briefs generally do not change the minds of Supreme Court justices. But Monday they said that the Republican brief, written by Seth P. Waxman, a former solicitor general in the Clinton administration, and Reginald Brown, who served in the Bush White House Counsel's Office, might be an exception.