Oh boy. The pressure on the White House to file a brief opposing Prop 8 just increased by a factor of, oh, infinity.
As you know, there’s been growing pressure on the White House to file a brief in support of striking down Prop 8 when the anti-gay legislation goes to the Supreme Court in March. Prop 8 repealed gay marriage in California in 2008.
And, as you may know, the President is opposed to Prop 8 and he’s for gay marriage, but he isn’t convinced that gay marriage is a federal issue, or that Prop 8 is unconstitutional, so he’s not sure he wants to file a brief opposing Prop 8 when it comes to the Supreme Court. Well, this pretzel logic is now being used by anti-gay bigots to help defend Prop 8 in court.
As you’ve heard, there’s been some pressure on the Obama administration to file a “friend of the court” brief from the Obama Justice Department declaring its view is that Proposition 8 is unconstitutional. Obama has come out for gay marriage while claiming its legal status should be left to the states to decide. However, he has not said whether he believes Prop 8 crosses the line into unconstitutionality — a position that can coexist with believing the states should ultimately decide these questions. Some gay advocates would like to see this because they believe it will help push the Supreme Court to issue a broad ruling along those lines. The White House won’t say what it will do with regard to the case.
Opponents of gay marriage, however, are not being as reticent — they are directly declaring that Obama’s own words buttress their case that Prop 8 should be upheld. In their brief in the case of Hollingsworth v. Perry, the Prop 8 case that will be heard by the Court this spring, the petitioners cite two quotes from Obama. On page 27, they quote Obama acknowledging in an interview last year that many people “feel very strongly” about preserving the traditional definition of marriage because they “care about families.” And on page 60, they quote Obama disclaiming any desire to “nationalize the issue” of gay marriage — in effect claiming Obama as their ally in the argument that Prop 8 should not be struck down.
I wrote just this morning that I was concerned that the President’s reticence, for lack of a better word, about Prop 8 might be used against him and us. And I was right. The President’s waffling (and I’m sorry, it’s waffling, and that’s the way everyone is taking it) on the issue of Prop 8’s constitutionality is backfiring on both him and (potentially) our civil rights.
I get that the White House has its reasons for not wanting to file a brief. I don’t get that such a position is justified or tenable. And I most certainly get that the position is starting to backfire.
At this point, the White House has to file a brief, if only to clarify what the President meant – they have no choice now that the President’s own words are being used against us. And if that brief isn’t a full-throated opposition to Prop 8’s constitutionality, and a full-throated endorsement of marriage as a federal issue, then I think they and we are going to have a bad month this coming March.