The Obama Administration filed a brief Thursday evening urging the Supreme Court to declare unconstitutional Proposition 8, California’s voter-approved ban on same-sex marriage.
But the brief stopped short of explicitly endorsing a federal constitutional right to same-sex marriage — an unqualified endorsement some gay rights advocates had hoped the Obama administration would use the case to make.
“Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection,” the Justice Department brief declares. “Prejudice may not…be the basis for differential treatment under the law.”
This marks a remarkable turnaround for President Barack Obama, who opposed same-sex-marriage during his first run for the presidency while insisting that the issue should be up to each state to decide. By asking the Supreme Court to invalidate California’s action on the subject, he has clearly abandoned the view that states should be free to chart their own course.
The brief filed by Solicitor General Donald Verrilli mentions bans on same-sex marriage in seven other states that grant broad domestic partnership rights and suggests they are also unconstitutional, but the Justice Department did not directly attack same-sex marriage bans on the books in states without comprehensive rights for same-sex couples.
The Obama Administration appears to have calculated that the challenge to Prop. 8 stands a better chance of prevailing with an argument that doesn’t directly challenge same-sex marriage bans in all 29 states where they’re on the books.
The brief may also reflect a focus on winning the vote of Justice Anthony Kennedy, who has shown an openness to gay rights but who is also a staunch defender of state sovereignty.
Still, gay rights advocates said Thursday night that the legal arguments in the brief — if adopted by the Supreme Court — would eventually result in the demise of same-sex marriage bans nationwide.
”If the court accepts the reasoning that the White House has put forward every state’s anti-gay-marriage amendment will fall quickly,” said Richard Socarides, an adviser to President Bill Clinton on gay and lesbian issues. “Make no mistake about it, the brief is a very bold endorsement of full equality…. This is fantastic.”
One of the lawyers defending Prop. 8 said he also saw the administration’s brief as a fairly robust embrace of a national same-sex marriage right, though not couched in quite those words.
”It essentially appears that president has taken the position that traditional marriage laws should be subject to extra scrutiny by the courts and that all of the justifications for Prop. 8 fail that test,” attorney Andrew Pugno of Folsom, Calif. said. “It does appear that this urges the court to federalize the redefinition of marriage. That’s the inescapable conclusion that that’s the president’s position.”
According to legal sources, administration lawyers portrayed their decision not to assert an overarching federal right to same sex marriage as a strategic move aimed at buttressing the administration’s view in another same-sex marriage case the court is to take up next month on the Defense of Marriage Act, the 1996 law that denies federal benefits and recognition to same-sex marriages.
“It was clever. There is definitely a logic and strategy for why they chose to go the way they did,” said one prominent gay rights advocate who asked not to be named. “The reason they did that is because of their position on DOMA. This frame is consistent with that.”
“Some of the commentary is missing the fact that this president and this Justice Department are very careful about what they don’t say,” said Evan Wolfson, founder and president of Freedom to Marry. “People rush to fill in what they don’t say with their own conjecture. This brief doesn’t deny there is a fundamental freedom to marry. It does not withhold anything and it will be helpful in making the case to bring down marriage discrimination nationwide.”
The federal government was not a party to the California case and was under no obligation to file a brief. However, gay rights groups had urged the administration to use the case to publicly embrace a federal constitutional right to same-sex marriage.
While the new brief doesn’t discuss such a right in those terms, it is also careful not to rule out that notion. For instance, while the brief says that California’s treatment of same-sex domestic partners “particularly undermines the justifications for Proposition 8,” that language hints that the justifications may have little merit in any event.
The Prop. 8 case goes before the justices on March 26. The next day the court will consider the case testing the constitutionality of DOMA, the 1996 federal law that bans same-sex spouses from received a wide array of benefits including federal employee insurance and filing of joint tax returns.
The Obama administration announced two years ago that it believes DOMA is unconstitutional and stopped defending the law, which is being defended at the high court by a lawyer retained by the House of Representatives. However, the constitutionality of the federal law is a different question than whether states, which have traditionally regulated marriage, should be compelled to recognize same-sex unions.
During the 2008 campaign, Obama said he was against same-sex marriage. However, he also opposed gay-marriage bans like Prop. 8, saying neither the states nor the federal government should use their constitutions to enshrine a ban on the practice.
Last year, shortly after kicking off his re-election campaign, Obama declared that he’d changed his mind on the issue. “I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married,” he told ABC News last May.
Despite Obama’s personal evolution on the subject, White House officials have dodged questions for more than a year on whether Obama believed that the U.S. Constitution guarantees same-sex couples the right to marry.
At a briefing for reporters Thursday, White House press secretary Jay Carney declined to discuss Obama’s involvement in the preparation of the brief.
“The president obviously has expressed an opinion in the past on this issue as a matter of policy. But when it comes to legal and constitutional issues around it, that’s a jurisdiction that resides at the Department of Justice. So I don’t have anything for you on it,” Carney said.
While White House officials have been cagey about the role of the president and other officials in the government’s brief on the Prop. 8 case, there is no doubt they have been under pressure from gay rights advocates to weigh in.
On Jan. 30, two leaders of the fight against Prop. 8, David Boies and Chad Griffin, visited the White House to meet with White House Counsel Kathy Ruemmler. Boies, a prominent Democratic lawyer, was co-counsel with Republican Ted Olson in the challenge to Prop. 8. Griffin is head of the gay rights group Human Rights Campaign and is a founder of the group that bankrolled the litigation, the American Foundation for Equal Rights.
Lawyers on both sides of the case also met with Justice Department officials to urge them to respect Obama’s previous decisions that the issue should be left to the states.
The White House declined to comment on the lobbying effort. However, it’s a matter of record Obama has had a direct hand in the administration’s previous legal decisions on same-sex marriage.
When Attorney General Eric Holder announced two years ago that the Justice Department would no longer defend DOMA, the attorney general said he was acting at Obama’s direction.
California voters approved Prop. 8, 52 percent to 48 percent, in the same election that lifted Obama to the presidency. Obama won 61 percent of the vote in the Golden State that year.
The brief Obama’s Justice Department filed Thursday argues that the fact that voters approved California’s same-sex marriage ban should not entitle it to special deference from the courts.
”Promoting democratic self-governance and accountability is a laudable governmental interest, but it is not one that can justify a law that would otherwise violate the Constitution,” the brief says. “If use of a voter initiative could itself provide a sufficient justification….for a suspect classification, it would render the equal protection clause nugatory in that context.”
In August 2010, following a trial with live testimony held over three weeks, U.S. District Court Judge Vaughn Walker declared Prop. 8 unconstitutional. In a sweeping ruling, he said there was no rational basis to deny marriage licenses to same-sex couples and he found the ban appeared to be motivated solely by “moral disapprobation” for gays and lesbians.
Last February, a panel of the U.S. Court of Appeals for the 9th Circuit upheld Walker’s ruling on somewhat different grounds. The 9th Circuit opinion, by Judge Stephen Reinhardt, found Prop. 8 unconstitutional because it stripped same-sex couples of a right to marry without adequate justification. The carefully-crafted decision did not assert a right for gay couples to marry in states where such unions were never recognized, but rejected the California ban because some same-sex marriages had already gone forward there.
Some analysts said Reinhardt’s ruling appeared to have been written to give the Supreme Court an opportunity to strike down Prop. 8 and restore same-sex marriage rights in California without squarely addressing the issue of whether other states had to recognize such unions.