I’d written before about the issue, as to whether the Obama administration will be filing a brief on behalf of those seeking to overturn Prop 8 before the Supreme Court in March. The administration isn’t talking, and the issue isn’t going away.
Well, the NYT is now weighing in, via an editorial.
For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land — impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.
Mr. Obama’s Inaugural Address appeared to reflect a deepened understanding that the right to marry the person of one’s choice is a fundamental right “under the law.” He needs to make sure his solicitor general conveys that sound legal view loud and clear in the Proposition 8 case.
The administration has indicated that it will weigh in on DOMA, but it’s silent on Prop 8, which will be decided by the court at the same time.
I think a lot of us instinctively want the administration to weigh in on Prop 8 as well. But of course, instinct is the issue, it’s whether a brief from the administration would help our case. It’s difficult to see why not. As the NYT notes, the administration is already weighing in against DOMA, and the President is now firmly in support of gay marriage, so why not weigh in against Prop 8 as well, a measure the President has already said he opposes? If anything, one could argue that the administration’s silence on Prop 8 could be interpreted by the court as the President being less opposes to Prop 8 as he is to DOMA. And that wouldn’t be particularly helpful.
But, look the lawyers. They’re the experts. And the lawyer experts, at least the ones who are talking publicly, say they want the administration to file a Prop 8 brief.
First, there’s super-lawyer Ted Olson, who is arguing the Prop 8 case.
“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.”
Next there’s Evan Wolfson, the head of the lead gay marriage group, Freedom to Marry:
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.”
It’s difficult to argue with Ted Olson, who used to be a solicitor general himself, and Evan Wolfson, the lawyer and gay leader who has the most invested in this issue, as it’s been his baby for 20 years. Olson and Wolfson might be wrong, but I’ve seen zero evidence suggesting they are.
I don’t personally understand the root cause of the administration’s angst about filing a Prop 8 brief. And I think they’re going to need to explain themselves, publicly, and in some detail, if in fact they’re not going to file one. I think they hoped this issue would fade away, and for a while it did. Well, it’s back.