Obama files Prop 8 brief endorsing “limited” gay marriage right

The Obama administration has filed a brief on the Proposition 8 (Prop 8) gay marriage case, coming before the Supreme Court at the end of March.

The brief calls for Prop 8, which repealed gay marriage in California in 2008, to be struck down, and it argues for a “limited” right to gay marriage, per SCOTUSblog.  The administration’s brief does not call for the court to extend that right nationwide.

You can read the brief here.

SCOTUSblog seems to have the most extensive, and best, analysis of the brief so far,  Here’s an excerpt from their post, titled “US endorses limited gay marriage right”:

The Obama administration on Thursday urged the Supreme Court to rule that same-sex marriage should be required in eight more states, beyond the nine that already permit it, although it stopped short of explicitly calling for the Justices to extend the right to the entire nation.

Here was the government’s key argument why the California ban on same-sex marriage fails its constitutional test:  ”California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8.”  Solicitor General Donald B. Verrilli, Jr., filed the brief shortly after 6:30 p.m. Thursday.  California is one of the eight states that would be covered by that argument.

Much of the logic of the government’s brief — its first entry into the controversy over the ballot measure – could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.

Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make.  Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case.  The President could take the opportunity to speak to the nation on the marriage question soon.

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution.  What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married.  The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

The eight states that apparently would be covered by such a decision are: California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

It will be interesting to see what the reaction is from other lawyers interested in the case, most notably gay rights legal experts, in terms of whether the limited embrace of same-sex marriage is enough.

Here’s AP’s take:

In a historic argument for gay rights, President Barack Obama on Thursday urged the Supreme Court to overturn California’s same-sex marriage ban and turn a skeptical eye on similar prohibitions across the country.

Dan Savage, Terry Miller marriage license

Dan Savage and husband Terry Miller are one of the first gay couples to get a marriage license in Seattle. (Love the photo of MLK in the background.)

The Obama administration’s friend-of-the-court brief marked the first time a U.S. president has urged the high court to expand the right of gays and lesbians to wed. The filing unequivocally calls on the justices to strike down California’s Proposition 8 ballot measure, although it stops short of the soaring rhetoric on marriage equality Obama expressed in his inaugural address in January.

Interestingly, in spite of suggesting that the President didn’t fully go there, AP does say, “the brief marks the president’s most expansive view of gay marriage and signals that he is moving away from his previous assertion that states should determine their own marriage laws.”

Again, it will be interesting to see how this plays out once we all have time to read the brief and think about it a bit.
UPDATE: Here’s Attorney General Eric Holder’s statement about the brief:
“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law.  Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

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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