A group of current and former Republican officials and public intellectuals filed a much celebrated friend-of-the-court brief last month in the gay-marriage cases currently pending before the Supreme Court. The lead signatory to the brief was former RNC chair Ken Mehlman. Among the more than 300 signatories are such luminaries as Massachusetts governor Charlie Baker, former Representative Mary Bono, former Romney for President general counsel Katie Biber, Senator Susan Collins, former Michigan attorney general Mike Cox, author S. E. Cupp, former White House chief of staff Ken Duberstein, Rudy Giuliani, and former World Bank president Paul Wolfowitz. The list goes on and on. As the brief explains, “many have served as elected or appointed officeholders in various Presidential administrations, as governors, mayors, and other officeholders in States and cities across the Nation, as members of Congress, as ambassadors, as military officers, as officials in political campaigns and political parties, and as advocates and activists for various political and social causes.”
The main point of the brief was to endorse gay marriage as a constitutional right. “Although amici hold a broad spectrum of socially and politically conservative, moderate, and libertarian views, amici share the view that laws that bar same-sex couples from the institution of civil marriage, with all its attendant profoundly important rights and responsibilities, are inconsistent with the United States Constitution’s dual promises of equal protection and due process.” Thus state marriage bans “target gay and lesbian couples and their families for injurious governmental treatment. The bans are accordingly inconsistent with amici’s understanding of the properly limited role of government.”
So far, nothing too surprising, given the legal bandwagon that has become the gay-marriage movement. My point here is not to debate the underlying merits of the case, since it is virtually a given that the Supreme Court will endorse the proposition that gay marriage is a constitutional right.
Instead, what’s notable about the brief is that it presaged the heated controversy over state laws designed to preserve and promote religious liberty, such as those under a barrage of hellfire in Indiana and Arkansas. The signers claim that such laws are completely consistent with their position on gay marriage, writing that they “support the free exercise of religion, and have the deepest respect for those who defend it.” They argue that “civil marriage for same-sex couples should [not] pose a threat to religious freedom” because of the range of federal and state laws that protect religious liberty. The brief goes on to note that “many States have expansive constitutional protections for religious liberty” and that “numerous States have enacted statutes designed to ensure religious liberty, both generally and in connection with access to civil marriage for same-sex couples.” In support, the brief cites laws from more than 20 states that protect religious freedom and “reflect our Nation’s commitment to the accommodation of diverse perspectives.”
#related#But the payoff in the brief comes in the last sentence of this passage: “In a tolerant society, the right to marry can and should coexist with the right to disagree respectfully and to decline to participate as individuals based on sincerely held religious beliefs.” This is precisely the issue that has drawn the wrath of the gay-rights and corporate communities that is befalling Mike Pence and Indiana’s religious-freedom statute. According to the signatories of the brief, in a pluralistic society, gay marriage can and should coexist with the right to worship as one pleases, both in church and in one’s everyday life (including, yes, in business). So a small business can be tolerant of differences in sexual orientation while also refusing to cater to a homosexual wedding ceremony, for instance. And, importantly, the decision about “whether and how to participate in marriages between persons of the same sex” should be up to the individual and “the government should not intervene in those decisions.”
Notably, most of this discussion is contained in a footnote to the brief. But it should not be a footnote to the public debate raging in Indiana and Arkansas. If the signers of this brief held these views a month ago, where are they today, when the outrage of Apple, Starbucks, Walmart, and the Twitter universe have befallen the lawmakers who seek to defend religious liberties with the very sort of laws that these proud friends of the court claim are needed to protect religious freedom? Will any of them have the courage of their convictions that Jeb Bush demonstrated this week, when he defended the Indiana law, arguing that it reflects “an important value for our country, in a diverse country, where you can be tolerant of people’s lifestyles but allow people of faith to exercise theirs”? Some of the brief’s signers (in addition to S. E. Cupp) may already have joined in the small chorus defending the statutes — and hopefully more will. But for now, it seems that Rudy Giuliani and his merry band of amici curiae have fallen uncharacteristically mute.