The Deadline to File a Prop 8 Brief is Thursday, February 28
With 24 hours left before the final deadline to file a brief in the upcoming historic Supreme Court case deciding whether California’s Proposition 8 (Prop 8), which repealed the right of gay couples to marry in that state, is constitutional, it is still unclear if the Obama administration will file.
While the President did file a brief the other day in the sister-case before the Supreme Court, challenging the Defense of Marriage Act (DOMA), which bans legally-wed gay couples from receiving federal marriage benefits (among doing other things), he has so far not indicated a willingness to do so in the Prop 8 case. And both legal and political experts I’ve spoken to do not understand why not.
Lawyer challenging Prop 8 Urges Brief
The first indication that it might prove helpful for the administration to file a brief in the Prop 8 case came from the attorneys defending gays and lesbians in the case. GOP super-attorney Ted Olson, who is co-counsel in the case with Democratic super-attorney David Boies, said this past December that a brief from the administration would be helpful. Specifically, Olson said such a brief would have “great effect.” Olson himself was solicitor general under President George W. Bush, i.e., the administration’s top lawyer arguing before the Supreme Court. So clearly Olson’s opinion on the value of such a brief carries some weight.
Top Gay Marriage Lawyer Urges Prop 8 Brief
A day after Olson, we heard from the top gay rights lawyer working on marriage cases, Evan Wolfson of Freedom to Marry, who also urged the administration to file a brief in the Prop 8 case: “President Obama and the Justice Department should absolutely urge the Supreme Court to restore the freedom to marry in California,” Wolfson told Chris Geidner at Buzzfeed.
Former top Clinton aide, on gay rights matters, Richard Socarides, told Geidner that an administration brief could prove “an important persuasive factor considered by the court. It is, after all, the opinion of the government.”
NYT Urges Prop 8 Brief
The NYT has urged to the President to file a brief as well:
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.
60+ Companies and 100+ Republicans File Prop 8 Briefs
And it’s not just them. This week, some 60+ top American companies are signing on to a brief opposing Prop 8 and supporting marriage equality. The companies include Apple, Alcoa, Facebook, eBay, Intel and Morgan Stanley.
Also this week, 100+ Republican officials signed on to a brief urging the Supreme Court to overturn Prop 8, and side with gay Americans. It’s a veritable who’s-who of senior Republican officials signing on to the brief. I just went through the entire list, and as someone who’s worked in Washington forever, I can tell you, these are some GREAT names. I’m actually quite surprised at how prominent the signatories are.
Now, sure, most of them aren’t in office. And sure, we wish more Republicans in office would come out and support the greater good on so many issues. But still, we’re dealing with the GOP here, not the Democratic Party. It’s still something for people of this caliber to publicly come out for gay marriage at all, considering the official position of their party, and considering their party is still run by a rather conservative fringe.
Some of the more prominent names on the list include:
- Ken Mehlman, Chairman, Republican National Committee, 2005-2007
- David D. Aufhauser, General Counsel, Department of Treasury, 2001-2003
- John B. Bellinger III, Legal Adviser to the Department of State, 2005-2009
- Katie Biber, General Counsel, Romney for President, 2007-2008 and 2011-2012
- Mary Bono Mack, Member of Congress, 1998-2013
- William A. Burck, Deputy Staff Secretary, Special Counsel and Deputy Counsel to the President, 2005-2009
- Alex Castellanos, Republican Media Advisor
- Paul Cellucci, Governor of Massachusetts, 1997-2001, and Ambassador to Canada, 2001-2005
- Mary Cheney, Director of Vice Presidential Operations, Bush-Cheney 2004
- Jim Cicconi, Assistant to the President & Deputy to the Chief of Staff, 1989-1990
- James B. Comey, United States Deputy Attorney General, 2003-2005
- Kenneth M. Duberstein, White House Chief of Staff and Assistant to the President, 1981-1984 and 1987-1989
- Lew Eisenberg, Finance Chairman, Republican National Committee, 2002-2004
- Benjamin Ginsberg, General Counsel, Bush-Cheney 2000 & 2004
- Carlos Gutierrez, Secretary of Commerce, 2005-2009
- Stephen Hadley, Assistant to the President and National Security Advisor, 2005-2009
- Richard Hanna, Member of Congress, 2011-Present
- Michael Huffington, Member of Congress, 1993-1995
- Jon Huntsman, Governor of Utah, 2005-2009
- David A. Javdan, General Counsel, United States Small Business Administration, 2002-2006
- Gary Johnson, Governor of New Mexico, 1995-2003
- David Kochel, Senior Advisor to Mitt Romney’s Iowa Campaign, 2007-2008 and 2011-2012
- Greg Mankiw, Chairman, Council of Economic Advisers, 2003-2005
- Kevin Martin, Chairman, Federal Communications Commission, 2005-2009
- Michael Powell, Chairman, Federal Communications Commission, 2001-2005
- Deborah Pryce, Member of Congress, 1993-2009
- Kelley Robertson, Chief of Staff, Republican National Committee, 2005-2007
- Ileana Ros-Lehtinen, Member of Congress, 1989-Present
- Ken Spain, Communications Director, National Republican Congressional Committee, 2009-2010
- David Stockman, Director, Office of Management and Budget, 1981-1985
- Jane Swift, Governor of Massachusetts, 2001-2003
- Michael E. Toner, Chairman and Commissioner, Federal Election Commission, 2002-2007
- Nicolle Wallace, Assistant to the President and White House Communications Director, 2005-2008
- William F. Weld, Governor of Massachusetts, 1991-1997, and Assistant U.S. Attorney General (Criminal Division), 1986-1988
- Christine Todd Whitman, Governor of New Jersey, 1994-2001, and Administrator of the EPA, 2001-2003
- Meg Whitman, Republican Nominee for Governor of California, 2010
Filing a Prop 8 Brief Is Appropriate and Helpful
I don’t know how the administration can plausibly justify not filing a brief by Thursday. The administration would argue, I’m sure, that they would only file a brief if it were 1) appropriate and 2) helpful to do so.
Well, Ted Olson was the lawyer responsible for defending such briefs before the Supreme Court in the Bush administration, so he should know if it’s appropriate or not. And as for whether such a brief is helpful, if the lawyers representing the gay community in this case think it would be helpful, and if the top gay rights lawyer in the country working on the marriage issue for the past 20+ years thinks that it would be helpful, and no top gay rights lawyer has indicated publicly that it wouldn’t be helpful, then I think it’s helpful.
So why is there no brief?
Third Hidden Reason Obama Won’t File Prop 8?
Unless there’s a third reason, unrelated to whether filing the brief is appropriate or helpful.
We know that in the past the Justice Department has not always been the gay community’s best ally, particularly during Justice’s full-throated support of DOMA in the first years of the Obama administration. During that time, Justice put other interests ahead of our civil rights, continually claiming (falsely) that they had no option but to defend DOMA in court. We now know that to be untrue.
It’s entirely possible that the Justice Department, or someone else in the Obama administration, has found a non-gay reason for why they don’t want to file a brief in the Prop 8 case. They’re afraid that somehow, somewhere, in some way filing a Prop 8 brief will negatively affect some other unrelated thing that they care about.
It’s just a hunch. But it’s the most logical explanation I can find for why no brief has been forthcoming in light of the overwhelming evidence in favor of them filing such a brief.
Either way, if no brief is filed, the administration is going to have to come up with a much better explanation for their actions. The current non-explanation is not only not cutting it (triple negative, I know), but considering that everyone and his brother has now filed a brief in the case – even the Mormons have weighed in (spoiler alert: the Mormons have chosen the gay-bashing side) – the administration’s absence runs the risk of speaking volumes to the court, and beyond.