NYT calls on Obama to file brief in Prop 8 case

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.

gay marriage

Gay marriage via Shutterstock.

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.


Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Google+ | LinkedIn. John Aravosis is the editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown (1989); and worked in the US Senate, World Bank, Children's Defense Fund, and as a stringer for the Economist. Frequent TV pundit: O'Reilly Factor, Hardball, World News Tonight, Nightline & Reliable Sources. Bio, .

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  • nicho

    By definition, an amicus brief is only filed by someone who is not a party to the case.

  • lynchie

    At this point his interest has been only a few words. Action is needed. I do base my feelings on his first term. Ran on ending the war–escalated with more troops and drone strikes on innocent people. Offered up SS and Medicare after campaigning on the exact opposite. I would be happy if his actions backed up his words.

  • FLL

    Here I will agree with you. We are living in great times, but Obama will not be seen as a great president because he was just pushed along by the spirit of the times. He reminds me of another weak leader, Louis XVI. France became a secular state because of the people who followed, like Robespierre and Napoleon. Louis XVI was a milquetoast who was just pushed along by other people who had vision.

  • http://adgitadiaries.com/ karmanot

    All these logical rationalizations for Obama’s abysmal lack of leadership, depressingly point to another example of a president in great times lacking greatness. Obama’s noble character is as eloquent and superficial as his rhetoric.

  • http://adgitadiaries.com/ karmanot

    Thank you FLL, but now I feel sooo sleepy.

  • http://adgitadiaries.com/ karmanot

    Good one, but I think Obummer already” looks like shit on a soda cracker”, or rather, shit on a croissant, considering his elitist trajectory.

  • craigkg

    Filing a Friend of the Court brief in a case where the government isn’t a party? I don’t have the stats, but it is more than rare, but by no means does the government do it in every case. In a case of this import though, it is generally expected.

  • emjayay

    Lawyers and/or Supreme Court experts: What is the history or conventions of an administration weighing in with a brief in this sort of situation?

  • jomicur

    “I don’t personally understand the root cause of the administration’s angst about filing a Prop 8 brief.” It’s quite simple. This administration has angst about anything that 1) the GOP and/or 2) the guys with corner offices on Wall St. might not like. After four years of Obama’s waffling on gay equality and doing the absolute minimum necessary to hang onto the gay vote, I don’t see how that could be much more obvious.

  • http://AMERICAblog.com/ John Aravosis

    Well, and I’m not saying the President is going to help us here – well, let me rephrase that, I think in the end he most likely will file a brief because the uproar will threaten to become too loud and painful.

  • craigkg

    The reason they don’t want to weigh in is that Obama has said he think we should be able to marry, not that we have a right to marry. Obama’s statement on marriage equality in May smacked deeply of “I think Negros should be free of bondage, but it is a state issues and if South Carolina wants to continue slavery…” It is a case of where, once again, he takes the most minimal acceptable step forward, but gives the impression of the move being an enormous leap forward and in so doing, holds back the pace of progress of LGBT equality.

  • Butch1

    Good! Time to cash in on being our “Fierce Advocate!” ;-)

  • FLL

    As I’ve said before, what I like about John Aravosis’s writing style is that he doesn’t use ouija boards, tea leaves, tarot cards, etc. in some effort to divine the future or read people’s minds. John looks at the available data and makes a rational conclusion based on that. This seems like a logical method to me. By the way, if most of the people in your office drink coffee, I suppose you could use coffee grounds instead of tea leaves when you’re practicing telepathy.

    Wait, I just remembered. You might be basing your conclusion on the certainty that what Obama did in his first term is what he will do in his second. The counter-argument to that would be that for the first three and a half years of his first term, he was in favor of civil unions but against marriage equality. So, at least in that case, what Obama did in his first term was not a predictor of what he would do in his second term. I’m just trying to get you to improve your argumentation skills. Aren’t I ever so helpful? Just bringing some sunshine to your day, as always.

  • S1AMER

    And you can substantiate that claim?

  • nicho

    Someone needs to ask him if he thinks Lincoln should have put emancipation up for a vote.

  • lynchie

    If it is a voter issue half of the U.S will vote against it. If civil rights had been a state issue we would still have segregation in the south. Another sign of a lack of leadership on Obama.

  • lynchie

    He does not give a shit

  • FLL

    Loving v. Virginia stepped on state sovereignty toes, and I think that’s always a necessity when something is unconstitutional. A basic function of the Supreme Court is to step on the toes of any other branch of government—federal, state or local—when said branch of government doesn’t honor the U.S. Constitution. When the Supreme Court does that, they’re just doing their job. There’s nothing wrong with any president asking his DOJ to file a brief in recognition of that basic Supreme Court function.

  • FLL

    No one today would use a “states rights” rationale to seriously argue against Loving v. Virginia, which declared anti-miscegenation laws unconstitutional. It’s time for the Pres to “evolve” away from his previous states-rights BS, or risk looking like a fool on the pages of history. How would it look for an African-American president, whose own parents would have been targeted by anti-miscegenation laws, to argue for states rights in denying people the basic right to marry? I understand that Obama is not tipping his hand until the last minute to avoid giving the Religious Right an opportunity to lobby the Supreme Court for weeks and weeks and weeks. But Obama’s final decision at the end of March is in favor of “states rights,” he’ll look like shit on a soda cracker, which is not a good look for historical legacy.

  • S1AMER

    I understand the federalism point of a president not getting involved in what is, on its face, a matter of how states may or may not amend their own constitutions. I get that, and at the student-of-constitutional-history-and-law level agree that presidents should usually steer clear of such issues.

    But I also see this as overarchingly a civil-rights issue, and I believe there are ways to thread the needle for rights overall without stepping on generic state sovereignty toes. I hope the Justice Department is exploring those ways.

  • JefferyK

    Um, the Obama Administration has been silent on Prop 8 because it believes that marriage is a state issue and that voters should decide our civil rights.

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