President Obama yesterday turned his rhetoric into action, filing a brief with the U.S. Supreme Court forcefully arguing that the court should strike down California’s ban on gay marriage.
It was an unprecedented move by a White House, to weigh in so clearly on one of the most contentious social issues of our time. But the president presaged the move during his inaugural address. “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”
In its brief, the administration argued that California’s Proposition 8, which was approved by voters in 2008, violates the Constitution’s equal protection rights of gay and lesbian couples and does “not substantially further any important government interest.”
The White House, in a separate case, has also asked the court to invalidate the federal Defense of Marriage Act, which also bans same-sex marriage benefits, but the California case is even more significant because it is the first time the administration is wading into a state ban. The administration stopped short of asking the court to invalidate gay marriage bans in every state, but the wording of the brief could be interpreted as such a move.
The court is scheduled to hear arguments on the California case on March 26 and on the Defense of Marriage Act on March 27. Both laws have been declared unconstitutional by federal courts.
“The (administration’s) arguments, start to finish, would apply to other states,” Theodore Boutrous, a lawyer for California couples challenging Proposition 8, told the San Jose Mercury News.
The California case has drawn a host of friend-of-the-court briefs from both sides, even including dozens of prominent Republicans who urged the court to overturn Proposition 8 because they say such bans violate the equal protection rights of gay and lesbian couples
The Obama administration argues that California’s ban on same-sex marriage is based in “impermissible prejudice.” To add historical and strategic weight to its argument, the brief cited Justice Anthony M. Kennedy, considered a key swing vote, who wrote in a concurrence in a 2001 Supreme Court case that incidents of prejudice might not rise “from malice or hostile animus,” and might well be the result of “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”
No matter, the brief said. “Prejudice may not, however, be the basis for differential treatment under the law.”
As expected, Andrew P. Pugno, the general counsel for supporters of Proposition 8, saw the administration’s brief as disappointing. Supporters had been lobbying the administration to stay out of the case.
“By arguing that Proposition 8 is rooted only in irrational prejudice, the president has impugned the motives of millions of Californians, turned his back on society’s longstanding interest in both mothers and fathers raising the next generation, and disregarded the rights of each state to decide for itself whether to redefine marriage,” Pugno said.
The court may decline to decide the broad question of whether there is a constitutional right to same-sex marriage in the states that do not allow it. The court may opt to avoid that larger issue on technical grounds or rule in a way that applies only to California.
Chad Griffin, who founded the organization that filed the legal challenge to Proposition 8 and now heads the Human Rights Campaign, an advocacy group in Washington, said the administration brief was “another historic step forward consistent with the great civil rights battles of our nation’s history.”
President Obama had “turned the inspirational words of his second Inaugural Address into concrete action,” he said.
