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Big push to support same-sex marriage at U.S. Supreme Court

Wednesday, February 27, 2013
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WASHINGTON — Prominent Republicans, retired military leaders and U.S. businesses are among the factions ready to ask the Supreme Court to support marriage equality in two cases up for argument next month.

The effort is being coordinated by gay rights groups and is designed to show the justices the rapid and widespread evolution of views about same-sex marriage, now legal in nine states and the District of Columbia. Religious leaders, labor groups and gay people who live in states that prohibit them from marrying are also weighing in.

The Supreme Court has never given gay Americans the special protection it has afforded women and minorities. If it endorses such an approach in the gay marriage cases, same-sex marriage bans around the country could be imperiled.

The justices will hear the dispute over California’s constitutional ban on same-sex marriage on March 26, followed a day later by a challenge to the federal Defense of Marriage Act provision that denies legally married gay couples a range of federal benefits available to heterosexual married couples.

Mary Bonauto, the director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders who is coordinating legal briefs that are due at the court later this week, said that the military, business, labor and other filings will have a “truth-telling function” about the reality of life for gays and lesbians, and they will share a common theme.

“Gay and lesbian families and their children are here to stay,” Bonauto said.

Businesses who already have signed onto the brief in the California case include Apple, eBay, Facebook, Intel, Morgan Stanley, Nike and Xerox.

“We file this brief to add more voices to the growing chorus that Proposition 8, and similar laws barring equal access to marriage for same-sex couples, are unconstitutional and should be invalidated,” the companies say, according to a draft of the brief provided by the Orrick, Herrington & Sutcliffe law firm. California is among 30 states with constitutional provisions that prohibit same-sex marriage, Roughly 10 others do so by statute.

A much larger group of companies is expected to support overturning the Defense of Marriage Act measure.

Ken Mehlman, a former chairman of the Republican National Committee who came out as gay in 2010, has worked over several months to compile a list of Republicans willing to step forward in support of gay marriage.

“This brief in some ways is a microcosm of what’s happening all over the country, across political parties as people examine their core beliefs and values,” Mehlman said. He is on the board of the American Foundation for Equal Rights, which is spearheading the lawsuit against Proposition 8.

Among the Republicans joining in support of gay marriage are former presidential candidates Jon Huntsman and Gary Johnson, former governors Christine Todd Whitman of New Jersey and Paul Cellucci, Jane Swift and William Weld of Massachusetts and 2010 nominee for California governor Meg Whitman, who supported Proposition 8 in her campaign. Also on the list are two members of Congress who voted for the federal law in 1996, Rep. Ileana Ros-Lehtinen of Florida and former Rep. Deborah Pryce of Ohio.

The group says the court’s intervention is most needed now, when “discriminatory laws appear to reflect unexamined, unfounded, or unwarranted assumptions rather than facts and evidence, and the rights of one group of citizens hangs in the balance.”

Another filing expected in the next few days, representing gays and lesbians from Utah and 19 other Republican-leaning states that prohibit same-sex marriage, Bonauto said. The primary point of that brief is to show “this is what life is like for us in these states,” she said.

The filings, called friend-of-the-court briefs, generally complement the main legal arguments being advanced by the parties in a case.

On Tuesday, Edith Windsor, the New York woman suing over the federal marriage law, told the court that there is no good reason to treat married gay couples differently from all other married couples.

Windsor is seeking a refund of $363,000 she had to pay in estate taxes after her longtime partner Thea Spyer died in 2009. If Windsor had been married to a man, her tax bill would have been $0.

Her legal argument and those advanced by the Obama administration and the same-sex couples suing in California ask the court to give more rigorous scrutiny to the federal law and Proposition 8 than courts ordinarily apply to most laws. They say the stricter review is appropriate when governments discriminate against a group of people, as is the case for claims that laws discriminate on the basis of race, sex and other factors.

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