I wrote yesterday about super-lawyer Ted Olson urging the Obama administration to submit a brief to the Supreme Court arguing that California’s Prop 8, that repealed gay marriage in that state in 2008, is unconstitutional.
Today, Chris Geidner at Buzzfeed weighs in, and quotes Evan Wolfson, the President of Freedom to Marry, the lead pro-”gay marriage” organization, also calling on the Obama administration to weigh in:
The Supreme Court’s decision to hear the appeal of the Proposition 8 challenge speeds that conversation up and puts the issue front and center. And although the Obama administration is not required to weigh in on the appeal, former George W. Bush administration Solicitor General Theodore Olson, the lead lawyer fighting Proposition 8, said on Friday that he hopes the president will.
“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson said, noting that the administration has not yet taken a position in the case.
That view was echoed on Sunday by Freedom to Marry President Evan Wolfson, who told BuzzFeed, “President Obama and the Justice Department should absolutely urge the Supreme Court to restore the freedom to marry in California.”
Geidner has more from Richard Socarides, who I also quoted yesterday:
As Richard Socarides, a lawyer and former Clinton White House official, said Sunday, “The opinion of the administration as expressed by the Department of Justice is almost always an important persuasive factor considered by the court. It is, after all, the opinion of the government.”
Since the justices are considering both the DOMA challenge, where the solicitor general’s office will be arguing on the government’s behalf, and the Proposition 8 challenge during the same term, Socarides said it’s untenable for the administration to avoid taking a position on Proposition 8.
“The solicitor general is going to get asked at argument anyway what the government thinks would happen if you apply heightened scrutiny to Proposition 8,” he said. “So there is no way of avoiding it.”
As I’ve written before, this is one of those situations where the writing is on the wall, and it’s not a question of “if” the administration will come to our rescue, but rather “when.” The problem for the President is that, in the past, he often seemed to ride to the rescue a bit late, almost begrudgingly. The President’s supporters argue that his support isn’t weak, and he wasn’t “forced” into helping us at the last minute, but rather that the wheels of government turn slowly, and it takes a while to do these things, to make these kind of decisions.
But the reality is that this issue, of the President’s judicial support for gay marriage, is beginning to become a serious public relations problem for the administration at a time when they’d prefer to focus on the fiscal cliff. It doesn’t matter if it takes the government a long time to make a decision, it appears that they’re dawdling. The Department of Justice should have been prepared for this eventuality, that the Supreme Court would take the Prop 8 and DOMA cases, and been ready with an answer. They should not have waited until now to consider if, when, and how they’d respond.
The statements issued by the White House and Justice on Friday, to the Washington Blade, sounded evasive (White House) and snippy (DOJ). Especially DOJ – their answer sounded downright obnoxious.
The Obama administration has thus far stayed out of the Prop 8 case. Asked in September by the Washington Blade whether the U.S. government would weigh in, White House Press Secretary Jay Carney had no comment and Nanda Chitre, a spokesperson for the Justice Department, said, “We are not a party to this litigation and would decline further comment.”
If Justice is working on the issue of whether to files briefs in these gay marriage cases, trying to determine what their appropriate response should be, if any, then their spokesperson could have just said that. That wouldn’t have been enough, but it would have been better than what she did say, which came off snippy. (Keep in mind, this wouldn’t be the first time that the Department of Justice stood in the way of our civil rights.)
More generally, and I’ve given this lecture before to folks in both the government and privarte sector, PR crises are never a question of whether you’re right or wrong, or whether circumstances are justifiably trying your hands, or not. It’s a question of how people perceive what you’re doing.
I think the administration’s handling of this issue already coming across badly, and I fear it’s going to get worse fast.
I think a lot of people in the administration have their heart in the right place on these issues, but far too often their Department of Justice seems to be the impediment to justice. And that needs to change.