Gay marriage as a conservative cause is not a new idea – it goes back at least to a 1989 New Republic article by U.S. commentator Andrew Sullivan – but it is only now being embraced by many conservatives. This is a tipping point for gay marriage in the United States, as the U.S. Supreme Court prepares to hear two cases on gay marriage this month.
More than 75 Republicans have signed a friend-of-the-court brief to the U.S. Supreme Court in support of gay marriage. Among these Republicans are four former state governors, former advisers to president George W. Bush and 2008 presidential candidate John McCain and two members of Congress.
At its heart, the conservative position is that gay marriage supports family and social stability. It strengthens the institution of marriage. And it is consistent with individual freedoms and limited government.
Why does the conservative position matter? Because it undermines one of the key justifications for excluding gay couples from civil marriage. In U.S. constitutional law, as in Canadian, there needs to be a demonstrated justification for leaving an individual or group outside of the law’s usual commitment to equal protection. So what is that justification? Undermining families?
Signatory Meg Whitman, a former New Jersey governor, quotes Conservative British Prime Minister David Cameron: “Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a conservative. I support gay marriage because I am a conservative.”
Separately, more than 200 U.S. corporations, including Apple, Johnson & Johnson, Walt Disney, Citigroup, Starbucks and Goldman Sachs, have signed a brief in support of gay marriage. The brief argues that the federal Defense of Marriage Act, which bars federal benefits to gay couples, imposes large administrative costs on companies who are forced to treat gay couples under a different set of rules. Many of those companies have also said publicly that they believe all employees should be treated equally under the law.
The two briefs, taken together, pose a major challenge to the Republican Party, which still opposes gay marriage. “The party of Lincoln should stand with our best tradition of equality and support full marriage,” former Utah governor Jon Huntsman, a signatory to the Republican brief, wrote in an article called “Marriage Equality is a Conservative Cause.” Even more important, the briefs pose a question that the Supreme Court may have trouble answering: What is the legal justification for continuing to exclude gay couples from marriage?