At least 75 prominent Republicans, including two sitting members of Congress, will file a brief with the Supreme Court this week defending the idea that same-sex couples have a constitutional right to marry. The amicus brief will be filed on behalf of those looking to strike down Proposition 8, the California ballot initiative that banned gay marriage in the state. The case and the Defense of Marriage Act will both be argued before the Supreme Court next month. According to The New York Times, which got a copy of the brief, it even cites some cherished pro-conservative decisions (like the Citizens United case) as precedent to strike down any bans.
The DOMA case is technically being waged against the government, but it is really a fight against Republican members of the House of Representatives, since the Obama Administration is refusing to defend the law in court. The amicus brief is unlikely to sway the Justices, but they will also have support from another prominent conservative. One of the lead lawyers in the Prop 8 case is Ted Olson, who argued Bush v. Gore on behalf of the Republican winner before becoming his solicitor general. The decision to enshrine that argument in formal legal terms signals is a subtle, but important shift within the party—one that could someday lead to a dramatic split between the rank-and-file members and the GOP’s leadership in Congress.
That is still “someday” though, and not today. Despite the symbolic importance of the brief it seems that most active members of the Republican Party are still leery about taking such a divisive stance. While the list has many recognizable names with impressive job titles, they were mostly high-ranking members of administrations that are no longer in power. Some of the biggest names also include Christine Todd Whitman, William Weld, and Jane Swift, who are all former governors and are unlikely to see another election. Most signees have made their support known in the past, and are not breaking wildly from their previous positions.