Ted Olson urges Obama to file brief for Prop 8, DOMA cases at Supreme Court

Prop 8, DOMA Case is Turning into a “Thing” for the Administration

The issue of whether the Obama administration will file amicus briefs before the Supreme Court on the upcoming Defense of Marriage Act (DOMA) and Prop 8 challenge is quickly turning into “a thing.”

First there was Chris Johnson’s story in the Blade on Friday, in which super-lawyer Ted Olson urged the administration to file an amicus brief on behalf of the Prop 8 case heading to the Supreme Court in a few months:

Ted Olson, a co-counsel in the Prop 8 lawsuit, made the remarks during a conference call on Friday in response to a question from Politico’s Josh Gerstein. Olson said a friend-of-the-court brief from the Justice Department would have “great effect” in the effort to overturn Prop 8.

“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. “And I’m quite confident that if they did participate, they would support our position in this case because the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”

White House and DOJ Seemed to Duck the Question about Filing Prop 8, DOMA Briefs

The White House seemed to duck the question, while the Justice Department sounded downright snippy about it:

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.”

Oh, trust me Nanda, there’ll be further comment. This issue isn’t going away.  It’s actually just begun.  And it’s accelerating, quickly.

It’s Only Going to Get Worse

Why do I think so?  First off, Politico now has the story.  It’s no longer just those “crazy gays” talking about this.  It’s gone mainstream.  In one day.

GAY MARRIAGE, prop 8, doma

Gay marriage via Shutterstock

“There will be pressure for the Justice Department to weigh in on the Prop. 8 case,” said Richard Socarides, a longtime gay rights activist and White House adviser to President Bill Clinton.Socarides said that when Obama “evolved” in the direction of support for gay marriage earlier this year, he and his aides seemed eager to let some time pass before confronting the question of whether it was a right every American should be guaranteed.

“I think this federalizes the issue much more quickly than the White House would have liked and may force them to take a position earlier than they would have liked,” Socarides said.

“It’s a fascinating question,” said another prominent gay rights activist, who asked not to be named. “Will they be at the table and which side of the table will they be at?”

Splitting the Gay Marriage Baby in Half Isn’t Going to Work

Josh Gerstein explains a bit more:

The Obama administration made clear last year that it would no longer defend the Defense of Marriage Act, the 1996 law that denies federal benefits to same-sex married couples. Obama said he’d concluded that law was unconstitutional. It was the Justice Department that asked the Supreme Court to take a challenge to DOMA, hoping justices would agree to strike it down.

However, the federal government has never taken a stand on the other, potentially more significant case that the justices added to their calendar on Friday: the legal challenge to California’s ban on same-sex marriage, approved in 2008. In 2010, a district court judge struck down Proposition 8 as unconstitutional and found a broad federal right to same-sex marriage. In February, the U.S. Court of Appeals for the 9th Circuit also found the measure unconstitutional, but on narrower grounds.

Yes, well, that’s a fine description of the nuance of the case. And it’s something 99% of Americans will never consider, care about, nor understand.  To the rest of America:

“President Obama is for gay marriage.”

They don’t care, nor understand, that he’s for it in his heart and his head, but he’s not entirely sure about all the constitutional questions surrounding gay marriage, and even though he thinks part of DOMA is unconstitutional, he’s not sure about the other part, and more generally isn’t sure whether the Constitution guarantees gay couples the right to marry, even though he’s said that he opposes Prop 8.

And America will hear that explanation from the White House and the Justice Department, and they’ll conclude:

“President Obama is for gay marriage.”

Now, I can see why the administration doesn’t want to have to deal with this now.  There’s the so-called “fiscal cliff” talks, and they don’t want any “distractions” from their messaging on the budget talks.

Well.  Too bad.

The Prop 8, DOMA “Distraction” is Already Here

The distraction is already here.

And it’s only going to get louder if the administration doesn’t come out and say that they’re submitting amicus briefs against Prop 8 and DOMA.

And if they don’t come out and say it, people in the gay community will get ticked off (I predict the tick off has already begun as a result of the not-very-helpful answers the Blade got from the White House and Justice on Friday), and they’ll get even more ticked off every time the White House refers questions to the Justice Department, and every time the Justice Department gets snippy.  And the issue will grow louder, and gay voices will grow angrier, for the next three months, and steal the news cycle over and over again, causing the very distraction the administration didn’t want in the first place.

But dragging this decision out will also cause one more thing to happen: The impression that, in the end, the administration supported us because they were forced to, not because they wanted to.

Wouldn’t it be better to get out front of the issue, deal with it cleanly, now, and get credit for doing a good thing – the right thing?

With the fiscal cliff talks coming up, and progressives already getting mighty nervous about what’s on the table, the White House could use more, rather than fewer, progressive friends in the coming weeks and months.

Just do it.

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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