NEAL CONAN, HOST:
This is TALK OF THE NATION. I'm Neal Conan.
Dozens of Republicans recently broke with the party line to sign an amicus brief to the Supreme Court that argues the conservative case for gay marriage. This comes just weeks before the court hears arguments on cases that challenge the legality of the Defense of Marriage Act and California's Proposition 8. Several prominent Republicans who once opposed gay marriage have signed the brief and that could reflect a growing shift within the GOP. News of the Republican brief comes days after the Obama administration filed one of its own, which argued that the Defense of Marriage Act, quote, "violates the fundamental constitutional guarantee of equal protection."
Return, as we often do in these cases, is David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. He joins us by phone now from his office here in Washington. Good to have you back in the program, David.
DAVID SAVAGE: Hi, Neal.
CONAN: Now, some Republicans have made it clear their stance on gay marriage with this brief. The question becomes, will the Obama administration weigh in on Prop 8?
SAVAGE: Yes. That's a big question for the remaining part of the week. They've got till Thursday afternoon to decide. I was told by some people who follow this pretty closely that it was actually undecided as of yesterday.
CONAN: As of yesterday?
SAVAGE: Yes, yes. And that the president, in the end, is going to have the final word on this. And President Obama has said two different things, as you probably know. He said, this should be worked out state by state. He really thinks it's better to have big changes made state by state, you know, rather than one sweeping court decision. On the other hand, in the inaugural address, he referred to this as a matter of equal rights, a fundamental equal rights. And a lot of people on the gay rights movement are - have been pressing him to say, look, if you really think this is a matter of equal rights, why not say so in the California case?
CONAN: So the old constitutional lawyer may decide that this is a matter of the Constitution, that equal rights under the law means that this is a constitutional right accorded to everyone right now.
SAVAGE: Yes. You know, I think the really interesting thing in this case, Neal, is I think this is the view on the gay rights' side, as well as on the other side, is that people want the Supreme Court to sort of move slowly in the right direction. That is, they're hoping - Justice Kennedy has written strong opinions in favor of gay rights in the past and you would think that there's five votes to come out in favor of gay marriage. But hanging over all of this is the 40-year history of Roe versus Wade. And the sort of lesson of all that - assuming it's a lesson - is that the court may have moved too far, too fast. Ruth Ginsburg has said that. And so the notion is, we'd like to move in the direction of gay marriage in case - in places like California, but it might be unwise for the court to try to make it a national rule in one decision this spring. So I think that's the real tension.
CONAN: Just to explain, I think there are three possible rulings the Supreme Court could give. I'm oversimplifying. There could be many more. But three that people are talking, one of which they could uphold California's Proposition 8 and say the people voted in this case and gay marriage is now illegal there. And it could say this is a case just for California. The California Supreme Court ruled that it was unconstitutional under California's Constitution, and we should respect that for California alone. Or it could say, this is a matter of, well, constitutional rights for everybody in every state.
SAVAGE: That's exactly right. And so I think that's really interesting thing, 'cause how do they, in effect, rule one way that doesn't cause too big a problem? And I actually think that's what the Obama lawyers are struggling with. They're a little reluctant to say - even if the president thinks this is a matter of equal rights - they're a little reluctant to say that, you know, Nebraska and Mississippi and Texas, you know, starting this year have to authorize gay marriage. That that's going pretty far.
CONAN: Now I wanted to ask you about this amicus brief that was on the front page of some newspapers this morning. This is a group of prominent Republicans, many of them formerly opposed to gay marriage, who've come out and told the court there is a conservative case for gay marriage, and we'll argue that.
SAVAGE: Yes, I think as we all know, there's been sort of a sea change in thinking on this subject in the last 15, 20 years. You know, in the 1990s when the court first broached some of the gay rights cases, maybe one in four Americans would've been in favor of gay marriage. Now it's more than 50 percent. The justices are very aware of that change. And I also think that justices like Anthony Kennedy know the direction of history. They know that in 10 years, 20 years, somewhere down the road, gay marriage is going to be a national norm and that they don't want to be on the wrong side of history. So I think that whole - this brief only adds to what has been sort of a sea change in think and does - I think it does have some effect on the justices.
CONAN: It also follows an advertisement, even more prominent Republicans - Colin Powell, Dick Cheney, Laura Bush among them - without their permission necessarily, all sided - quoted as supporting gay marriage in other context, but they are not signatories to this brief.
SAVAGE: You know, Neal, I head a conservative judge say a couple of years ago, a line that stuck with me, is that one of the really brilliant things about the gay rights movement is that they took on really essentially conservative goals. That is, they wanted to serve openly in the United States military. Remember that, and how big a fight that was? And they want to marry. Committed couples wanted to marry, and some of them wanted to adopt and raise children. Now if you're conservative, how can you be opposed to something like serving in the military and getting married and raising children?
CONAN: It's a difficult argument, but do you think - amicus briefs normally are, well, window dressing. Is this going to make a difference?
SAVAGE: No, not one amicus brief doesn't make a difference. But I do think it's part of a trend of just a change in thinking and saying that, yes, many Republicans now think, you know, same sex - gay marriage is a good thing. The country's moving that way, and it should be a matter of - it's part of a larger just change in thinking. And I do think that large change in thinking does affect justices.
CONAN: And we're expecting that decision by the Obama administration Thursday. Is there a deadline?
SAVAGE: Yes, that's right. The deadline to file amicus briefs on the side of the - now on the gay rights side is Thursday at the end of close of business. So I'm expecting at about 6:00 on Thursday.
CONAN: There's also - we're talking about Prop 8. The Defense of Marriage Act case is now seen as a narrower case. This is about the federal government providing equal rights under the law.
SAVAGE: Yes. That's right. That's the question of gay couples who are legally married in states like Massachusetts. Normally, marriage is a matter of state law, and so the question is, how can the federal government deny those couples, who are married in their state, things like filing a joint tax return or getting a social security survivor's benefit? That's a very important issue for a lot of couples, obviously. It's also the case that the Obama administration wrote a very strong brief saying that you, the Supreme Court, ought to view with great skepticism any discrimination based on sexual orientation. You ought to view it just like you viewed gender discrimination in the 1970s, that laws should not discriminate on that basis. So they followed a very strong brief in that case, and that legal standard, I think, may carry over into the gay marriage cases as well. And that's - we'll see down the road.
CONAN: And I wanted to ask you about a decision that did come out today. This is on the constitutionality of the government's wiretap program, a case in which the plaintiff's attorneys were upheld in lower courts.
SAVAGE: No. If we're talking about the same thing. There's - throughout this lawsuit based on a standing, and that has been sort of a common, you know, going back a decade, there've been a whole series of attempts by the ACLU and other groups to challenge warrantless wiretapping to, you know, state secrets to challenge mass detention of immigrants after 9/11, to go after more recently the drones program. And almost every time, these cases - by the time they get to the Supreme Court, the justices end up saying no standing. You don't have any standing to sue.
CONAN: You can't prove that you were wronged.
SAVAGE: That's exactly right. It's sort of a catch 22, which is the - somebody sues and says, I'm a lawyer. I do a lot of work with clients in Pakistan, or I'm a journalist and I do a lot of work with people overseas. I think my calls are being intercepted. And the government says, well, you can't prove that. We're not going to tell you whose calls are being intercepted, but you can't prove your calls are intercepted, therefore, you have not - you can't show you suffered any harm and therefore the suit should be thrown out. And that's what the court said to them. On a five to four vote they said, these plaintiffs do not have standing because they can't show their calls have been intercepted.
CONAN: This was on the all too familiar five-four liberal-conservatives split. You quoted Justice Breyer and his opinion, saying, yes, they can prove it because they've had to change how they operate.
SAVAGE: Yes, that's right. That's - some people though this case might have a chance of going forward because this was not totally just an abstracting thing of saying, I don't like warrantless wiretapping. These people, as I've said, like these attorneys said, well, gee, if I can't talk to one of my clients over the phone because the government might intercept them, I need to fly to Paris or I need to fly to Pakistan. And they could say, look, that's an actual harm. I had to change what I do, and that should give me a standing. And it persuaded four justices, but not five.
CONAN: David Savage, as always, thanks very much for your time.
SAVAGE: Thank you, Neal.
CONAN: David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune, joined us by phone from his office here in Washington. You're listening to TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.