As a conservative with gay friends, nothing would make me happier than to watch Californians pass an initiative to legalize same-sex marriage — preferably with protections for religious objectors. Polls suggest it would pass today. Then the issue would be settled, and Californians — not a court in Washington — would have determined their own marriage laws.
So of course I was interested when 100-plus conservatives filed a friend-of-the-court brief in support of a legal challenge to Proposition 8, the California constitutional amendment supported by 52 percent of voters in 2008 that limited marriage to a man and a woman. The case is before the U.S. Supreme Court.
Former Republican National Chairman Ken Mehlman tops the list of court "friends." As a gay Republican, the issue is dear to him. The conservative friends include former elected officials, Republicans who lost recent elections, right-leaning commentators, political consultants and one standout — a sitting member of Congress, Rep. Ileana Ros-Lehtinen of Florida. (You can see the full list at http://blog.sfgate.com/djsaunders.)
"I strongly believe that marriage for all Americans is a fundamental right," Katie Biber, a Romney 2012 campaign attorney and a signer of the amicus brief, explained to me. "There is no rational reason, no legitimate reason, to limit marriage rights to opposite-sex couples."
The amicus brief makes a strong conservative case for same-sex marriage. Marriage promotes stable families. Conservatives like strong families. Ditto "limited government and individual freedom." Perhaps to establish its conservative bona fides, the brief cites legal opinions dear to the right, such as the U.S. Supreme Court's Citizens United ruling and a law journal article co-written by former George W. Bush administration attorney John Yoo.
But the brief veers left, argued Yoo — a University of California, Berkeley law professor — by pushing for a court-imposed result: "It would be a mistake for the Supreme Court to use this case to basically cut off the political process and impose its own view on a moral and political question that is very divisive." The savvy conservative believes in states' rights and voters' right to choose their marriage laws.
The amicus brief also quotes Barry Goldwater, who once said, "The Conservative's first concern will always be: Are we maximizing freedom?" To which Yoo responded, "In a democracy, a major freedom is that you get to decide the policies you live under." When the Supreme Court steps in, it takes away that freedom.
"I think (marriage) is such an important, fundamental constitutional right," Biber countered. "I don't think it should have to wait."
I've heard that before. The problem with that approach, Yoo noted, is that same-sex marriage advocates had better be right about a freedom not explicitly mentioned in the Bill of Rights. If they're wrong, they've set back their cause.
Yoo, too, believes that most states will enact same-sex marriage laws, and those laws will be politically more secure. "If it's decided by the court, it will be like Roe (v. Wade)," said Yoo, forever "one justice away" from being overturned. What the Big Bench giveth, the Big Bench can taketh away. But if voters pass a same-sex marriage law, it will stand, because the people have willed it.