A total of 57 congressional Republicans — including Senate Majority Leader Mitch McConnell (R-Ky.) and Republican presidential candidate Ted Cruz — joined forces in a bicameral brief filed on Friday urging the U.S. Supreme Court to uphold state bans on same-sex marriage.
The 32-page friend-of-the-court brief — signed by six U.S. senators and 51 U.S. House members — makes the case that state prohibitions on same-sex marriage are constitutional on the basis of principles of federalism, judicial restraint and states’ traditional sovereignty over domestic relations.
“Amici believe that a judgment of this Court imposing a judicially mandated revision of state laws defining marriage would circumvent the proper resolution of these profound and divisive issues through state democratic processes,” the brief states. “Such a decision could damage the rights of a self-governing people. It would set an unwarranted precedent, with effects far beyond this case, of federal encroachment into a traditional area of state concern, and of judicial pre-emption of an area that the Constitution allots to democratic process.”
At one point, congressional Republicans invoke the U.S. Supreme Court’s decision in Roe v. Wade, saying the nationwide ruling on abortion was “widely criticized” for departing from incremental change.
“In this case, it is beyond dispute that a judicially mandated redefinition of marriage would impose sweeping, rather than incremental, change,” the brief says. “It would impliedly invalidate the recent, democratically adopted policies of 31 States. Moreover, several States have opted for a more incremental approach, affording to same-sex couples forms of legal recognition other than marriage. Constitutional prudence dictates that this incremental, democratic process should be allowed to continue.”
The six senators who signed the brief, in addition to McConnell and Cruz, are Sen. Steve Daines (R-Mont.), James Lankford (R-Okla.), James Inhofe (R-Okla.) and Tim Scott (R-S.C.). In February, McConnell was tight-lipped when asked by the Washington Blade about his hopes for the marriages cases and non-committal about signing a friend-of-the-court brief.
Among the 51 House members who signed the brief are lawmakers who have a reputation for holding anti-LGBT views, including Reps. J. Randy Forbes (R-Va.), Virginia Foxx (R-Va.), Trent Franks (R-Ariz.), Louie Gohmert (R-Texas), Vicky Hartzler (R-Mo.), Tim Huelskamp (R-Kansas), Jim Jordan (R-Ohio), Steve King (R-Iowa), Raul Labrador (R-Idaho), Randy Weber (R-Texas) and Pete Sessions (R-Texas).
Not listed is House Speaker John Boehner (R-Ohio). In February, he told the Washington Blade he didn’t anticipate House Republicans would weigh in on the marriage cases in a legal capacity. Also not among the signers are potential Republican presidential candidates Sens. Rand Paul (R-Ky.) and Marco Rubio (R-Fla.).
The attorney who signed the brief as counsel of record is D. John Sauer, an attorney for the St. Louis-based law firm Clark & Sauer LLC.
Standing in contrast to this brief is a filing from 211 congressional Democrats — 167 House members and 44 senators — calling on the Supreme Court to find a constitutional right for same-sex couples to marry. Even though the Democrats are at their smallest minority ever in Congress since the early 20th century, the number of lawmakers on the Democrats’ brief is nearly four times the number on the Republican brief.
The brief was filed on the day that friend-of-the-court were due in favor of state prohibitions on same-sex marriage. The next step in the cases is oral arguments, which are set for April 28. The Supreme Court is expected to issue a nationwide ruling on same-sex marriage by the end of June.