DENVER — Citing individual freedom, an evolving definition of family and fairness, and a “big tent” vision for their party, about 20 prominent Western Republicans have thrown their support behind same-sex marriage.

The move comes as the U.S. 10th Circuit Court of Appeals in Denver prepares to decide the constitutionality of gay marriage bans in Oklahoma and Utah. Arguments are expected in those cases next month.

In a legal brief filed Tuesday, the 20 Republicans urged the court to reject gay-marriage bans as discriminatory. Among those signing the 33-page document are former Sens. Alan Simpson of Wyoming and Nancy Kassebaum of Kansas, said Sean Gallagher, a Denver lawyer who helped draft the brief.

Among the other signers are former New Mexico Gov. Gary E. Johnson, a former Republican who is now a registered Libertarian, and a variety of lawmakers and GOP officials from Colorado, Utah and Wyoming.

In December a federal court overturned Utah’s state amendment that said marriage must be defined as being only between a man and a woman. In January, a federal court in Oklahoma similarly ruled against that state’s ban on gay marriage. Both of those rulings were immediately appealed, paving the way for the showdown in April in Denver.

And while Tuesday’s brief is mostly symbolic in relation to those cases, Gallagher says it signals a seismic shift underway in party thinking. This is especially true in the West, where some Republicans now seem resigned to what Gallagher describes as an “inexorable tide.”

Just last week a federal judge overturned the Texas ban on gay marriage, and in December the New Mexico Supreme Court ruled that same-sex couples have the right to marry. Both of those states have Republican governors.

“Courts are necessarily guided by evolving notions of what types of discrimination can no longer be maintained as legitimate,” the document states. “Choosing to marry is also a paradigmatic exercise of human liberty.”

The legal brief further says that those who are prohibited from marrying know best that “the ability to marry is an expression of one’s freedom.”

Still, there remains strong resistance to same-sex marriage. Frank Schubert, national political director for the Washington-based National Organization for Marriage, released a statement Tuesday reaffirming its position that marriage must be only between a man and woman: “Certainly there are some individual Republicans who disagree. This issue should be debated and decided by the American public, not unelected federal judges who frequently attempt to substitute their own values for those of the American people.”

Shubert added the issue of marriage “has historically been the purview of the states, not the federal government.”

Opponents of same-sex marriage have argued that it diminishes heterosexual marriage and damages children.

But Gallagher, who served as 2012 GOP presidential nominee Mitt Romney’s general counsel in Colorado, argues that there is “no fact-based” evidence to those claims. In fact, the legal brief contends that “marriage is strengthened and its benefits, importance to society and the social stability of the family unit are promoted by providing access to civil marriage for same-sex couples.”

Recent polls have indicated that 40% of Republicans now believe same-sex marriage should be legal, up from 33% less than a year ago.

In part it is generational. Gallagher acknowledged that for many young Republicans same-sex marriage is a non-issue. But there is also a geographical component. In the West, the notion of personal freedom is sown into the soil.

The document invokes the words of President Regan and his belief that the Republican Party must be a “big tent” and Barry Goldwater’s vision that “we don’t seek to lead anyone’s life for him. We only seek to secure his rights.”

 

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