Under the U.S. Supreme Court: 'Dirty Harry' supports gay marriage in California

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent
Actor and director Clint Eastwood motions to a chair that represents President Barack Obama during his speech at the 2012 Republican National Convention at the Tampa Bay Times Forum in Tampa on Aug. 30, 2012. -- UPI/Matthew Healey
Actor and director Clint Eastwood motions to a chair that represents President Barack Obama during his speech at the 2012 Republican National Convention at the Tampa Bay Times Forum in Tampa on Aug. 30, 2012. -- UPI/Matthew Healey | License Photo

WASHINGTON, March 10 (UPI) -- Clint Eastwood has lent his raspy-voiced, steely eyed presence to the debate on gay marriage, signing on to a brief asking the U.S. Supreme Court to strike down California's Proposition 8, which limits marriage to a man and a woman.

The 82-year-old accomplished film actor and director who argued with an empty chair at the Republican convention last year and supported Mitt Romney -- no friend of same-sex marriage -- has joined others in the GOP to stake out a seemingly more moderate position on a key social issue.


Eastwood's stance is consistent with statements he's made in the past, the Huffington Post reports.

In 2011, Eastwood told GQ magazine, "I don't give a [expletive] about who wants to get married to anybody else! Why not?! We're making a big deal out of things we shouldn't be making a deal out of. ... Just give everybody the chance to have the life they want."


In 2012 on Ellen DeGeneres' talk show, he said: "The condition of society right now, with the high unemployment rates and the tremendous debt we're increasing and the government spending, we'd think there'd be [many more worthy issues] to think about than worrying about gay marriage."

Another surprise earlier this month: The Obama administration filed a brief with the Supreme Court attacking Prop 8. Until last week, the U.S. Justice Department had stayed out of the California fight.

The U.S. Solicitor General's office also asked the Supreme Court to allow it to participate in the argument on behalf of Prop 8 challengers for at least 10 minutes.

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Prop 8 has something of a checkered background.

In May 2008 the California Supreme Court struck down a state law banning same-sex marriage. But California voters reversed that ruling, approving Prop 8, the California Marriage Protection Act, in November 2008 with slightly more than 52 percent for, nearly 48 percent against.

Prop 8, an initiative that amends the state Constitution, says in part, "Only marriage between a man and a woman is valid or recognized in California."

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However, a federal judge declared Prop 8 unconstitutional, and a three-judge appeals court panel in San Francisco agreed 2-1. Argument in the U.S. Supreme Court in the Prop 8 case, Hollingsworth vs. Perry, is scheduled for March 26.


A separate challenge to the federal Defense of Marriage Act, which says federal benefits and considerations for married couples apply only to heterosexual unions, is scheduled the next day, March 27.

The Obama administration is enforcing the 1996 federal act but is one of the main challengers in court. Counsel representing the Republican leadership of the U.S. House is doing the defense honors.

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California is not defending Prop 8, leaving the job to the private sponsor of the state law.

Meanwhile, friend-of-the-court briefs -- briefs from outside parties supporting one side or the other -- have fallen like snow on the two same-sex marriage cases. About 70 friends-of-the-court, or amici curiae, briefs have been filed in the Prop 8 case alone.

The brief supported by Oscar-winner Eastwood -- but lacking the laconic quality of his movie dialogue -- says the approximately 125 prominent Republicans who signed it "are social and political conservatives, moderates and libertarians from diverse backgrounds. 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 officials in political campaigns and political parties, and as advocates and activists for various political and social causes."


The brief stresses its signers are still conservatives.

Group members "support traditional conservative values, including the commitment to limited government, the protection of individual freedom and the belief in the importance of stable families. Because [members] believe that these values are consistent with -- indeed, are advanced by -- providing civil marriage rights to same-sex couples, [the members] submit that ... the [appeals court] decision below should be affirmed."

The group concedes that many of its members have changed their minds about same-sex marriage in recent years.

"Many of the signatories to this brief previously did not support civil marriage for same-sex couples; others did not hold a considered position on the issue," the brief said. "However, in the years since Massachusetts and other states have made civil marriage a reality for same-sex couples, [group members], like many Americans, have re-examined the evidence and their own positions and have concluded that there is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples."

Group members "do not believe that measures like Proposition 8 rest on a legitimate, fact-based justification for excluding same-sex couples from civil marriage. Over the past two decades, [group members] have seen each argument against same-sex marriage discredited by social science, rejected by courts, and undermined by their own experiences with committed same-sex couples, including those whose civil marriages have been given legal recognition in various states.[They] thus do not believe that any 'reasonable support in fact' exists for arguments that allowing same-sex couples to join in civil marriage will damage the institution, jeopardize children, or cause any other social ills. Instead, the facts and evidence show that permitting civil marriage for same-sex couples will enhance the institution, protect children, and benefit society generally."


Eastwood is listed among the signers of the brief in the appendix as a "producer, director, actor, and mayor of Carmel, Calif., 1986-1988."

Also among the conservative and moderate Republicans who have signed on to the friend-of-the-court brief are Kenneth B. Mehlman, chairman of the Republican National Committee, 2005-07; Mary Cheney, former Vice President Dick Cheney's daughter and "director of Vice Presidential Operations," Bush-Cheney 2004, 2003-04; Stephen Hadley, assistant to the president and national security adviser, 2005-09; Jon Huntsman, governor of Utah, 2005-09, ambassador to China, 2009-11 and a candidate for president last year, Tom Ridge, governor of Pennsylvania, 1995-2001, and secretary of homeland security, 2003-05; U.S. Rep. Ileana Ros-Lehtinen of Florida; and Paul Wolfowitz, deputy secretary of defense, 2001-05, and president of the World Bank Group, 2005-07.

In its brief last week, the Obama administration said Prop 8 violates the equal protection guarantee of the U.S. Constitution.

The private citizen challengers of Prop 8, "committed gay and lesbian couples, seek the full benefits, obligations and social recognition conferred by the institution of marriage," the government brief says.


"California provides to same-sex couples registered as domestic partners all the legal incidents of marriage. But it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection."

Supporters of the initiative "defend the constitutionality of Proposition 8 on the basis of three governmental interests purportedly served by the initiative: 1) An interest in promoting responsible procreation and child-rearing; 2) an interest in proceeding with caution before recognizing same-sex marriage; and 3) an interest in restoring democratic authority over an issue of significance to the state's citizens. None of these interests satisfies [survives] heightened scrutiny [the toughest hurdle to pass constitutional muster]" by the federal courts.

Not everyone, of course, agrees with the Obama administration or the Eastwood group.

In a petition that brought the case to the Supreme Court, ProtectMarriage -- Prop 8's sponsor is a state non-profit, California Renewal -- argues the appeals court misinterpreted U.S. Supreme Court precedent in striking down the initiative. The petition also argues the state has a compelling interest in limiting marriage to a woman and a man.


"The unique procreative potential of sexual relationships between men and women implicates vital social interests," the petition says. "On the one hand, procreation is necessary to the survival and perpetuation of society and, indeed, the human race; accordingly, the responsible creation, nurture, and socialization of the next generation is a vital -- indeed existential -- social good."

On the other hand, the petition says, "irresponsible procreation and child rearing -- the all too frequent result of casual or transient sexual relationships between men and women -- commonly results in hardships, costs, and other ills for children, parents, and society as a whole. A central purpose of marriage in virtually every society, then, is and always has been to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world."

The petition says "prior to the recent movement to redefine marriage to include same-sex relationships, it was commonly understood, without a hint of controversy, that the institution of marriage owed its very existence to society's vital interest in responsible procreation and child rearing. That is why, no doubt, this [Supreme] Court has repeatedly recognized [heterosexual] marriage as 'fundamental to our very existence and survival.'"


Supporting ProtectMarriage is a group that includes the Coalition of African-American Pastors USA, the Center for Urban Renewal and Education, the Frederick Douglass Foundation and an array of law professors.

The Coalition of African-American Pastors is part of the Arlington Group, a conservative Christian umbrella organization linked to the Rev. Donald Wildmon, famous for battling exhibits by the late homoerotic photographer Robert Mapplethorpe.

The Coalition of African-American Pastors describes itself in the group's brief as "a grass-roots movement of tens of thousands of African-American Christians and clergy who believe in traditional family values such as, protecting the lives of the unborn and defending the sacred institution of marriage."

Some same-sex marriage proponents have linked laws banning gay marriage to old Jim Crow laws banning interracial marriage. The conservative group disagrees.

"Interracial marriage and same-sex marriage are polar opposites in terms of the state interests involved," the group's brief says. "They must be analyzed differently under the equal protection clause of the 14th Amendment. The marriage law invalidated by this [Supreme] Court in [1967's Loving vs. Virginia] and the marriage law [Prop 8] invalidated by the 9th [U.S.] Circuit [Court of Appeals] and by the district court in [Hollingsworth vs.] Perry ... are utterly divergent from one another.


"In Loving, this court invalidated a Virginia marriage law that was 'designed to maintain' the 'odious' principle of 'White Supremacy,'" the brief says. "In contrast, in Perry, the 9th Circuit and district court invalidated a California marriage law that was designed to protect the socially beneficial principle that male-female unions uniquely provide, inter alia, the most promising and protecting environment for marital relations, including the expression of safe sexual relations, responsible procreation and optimal child rearing. Male-female marriage alone [unlike anti-miscegenation rules especially] links those three critical social interests."

Some arguments in the Supreme Court can be excruciatingly boring. But the arguments in the two same-sex marriage cases later this month promise to be lively, especially with conservative Justice Antonin Scalia firing .44-caliber questions like a judicial Harry Callahan from the bench.

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