The Obama administration has filed a friend of the court brief urging the U.S. Supreme Court to strike down California's ban on gay marriage as a denial of "equal protection under the law." But the brief does not call for the abolition of all state bans on same-sex marriage.
The case now before the high court tests the constitutionality of California's Proposition 8, a referendum narrowly passed by voters in 2008 that reinstituted a ban on gay marriage.
According to administration sources, President Obama personally made the decision on arguments to be made in the brief, signing off on the approach Wednesday night.
Argument Limited To California
While the brief uses expansive language about the right to marry, it does not urge the court to go as far as invalidating bans that exist in some 30 states. Instead, the brief asks the court to focus on the "particular circumstances presented by California law" rather than addressing the issue as it is presented in many other states.
California and seven other states currently grant gay couples all the rights that are granted to heterosexual couples, except the right to marry. Same-sex couples raise children with the same rights and responsibilities as heterosexual couples, become foster parents, can make medical decisions for a partner, etc. "California has therefore recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors' opposite-sex marriages," the brief says. Nonetheless, as the brief puts it, Proposition 8 "forbids committed same-sex couples from solemnizing their union in marriage and instead relegates them to a legal status — domestic partnership — that is distinct from marriage but identical to it." Therefore, as the brief puts it, California denies same-sex couples the right guaranteed in the Constitution that all persons similarly situated be treated alike.
If the court were to agree with the administration's argument, seven other civil-union states would also see their laws fall.
Those states are Hawaii, Delaware, Illinois, Nevada, New Jersey, Oregon and Rhode Island; some of these states are already moving to legalize same-sex marriage.
Bans In Other States Would Stay
Some 30 other states that ban gay marriage, however, would retain their laws, at least for the time being.
The administration is basically telling the court it can wait to deal with those states — though the strong implication is that someday, in the not-too-distant future, there will be a reckoning for those states, too.
For now, though, the brief is a subtle acknowledgement of the fact that public opinion about same-sex marriage is changing more rapidly than anyone might have anticipated just a few years ago. And if the court can kick the can down the road a bit, lots more states probably will legalize gay marriage on their own, making it a lot easier for the court to strike down any remaining laws.
Indeed, many gay-rights advocates privately say that the more states that legalize gay marriage, the better their chances of winning a clear and total victory in the Supreme Court, eventually. They note that in 1967 there were 16 states that still made interracial marriage a crime when the Supreme Court, in the aptly named case of Loving v. Virginia, struck down those laws.
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Transcript
RENEE MONTAGNE, HOST:
This is MORNING EDITION, from NPR News. I'm Renee Montagne.
STEVE INSKEEP, HOST:
And I'm Steve Inskeep. Good morning. President Obama took another step this week that deepened his administration's support for gay marriage.
MONTAGNE: The president said last year he supported it, and he spoke of it again in his inaugural address. Now the administration has filed a friend of the court brief, offering a formal opinion to the Supreme Court on a gay marriage case.
INSKEEP: Justices hear arguments this month on a challenge to California's gay marriage ban. NPR legal affairs correspondent Nina Totenberg reports this brief falls short of asking the court to invalidate same-sex marriage bans in most other states.
NINA TOTENBERG, BYLINE: In 2008, California voters narrowly passed a referendum reinstituting a state ban on same-sex marriage. Known as Proposition 8, the referendum is now being tested in the U.S. Supreme Court. And last night, at the deadline, the United States filed a so-called friend of the court brief.
There's been much speculation on what course the administration would take in the case. Indeed, since the federal government is not directly involved, it did not have to file any brief at all. But President Obama personally made the decision to file and on Wednesday night, signed off on the arguments made in the brief filed yesterday. Those arguments are a cross between the position Obama initially took on gay marriage - that it was up to the states - and the position he suggested at his inaugural, that the right to marry is a fundamental constitutional right.
While the brief filed yesterday uses expansive language about the right to marry, it does not urge the Supreme Court to go as far as invalidating bans that exist in some 30 states. Instead, the brief asks the court to focus on the, quote, "particular circumstances presented by California law," rather than addressing the issue as it's presented elsewhere.
In California and seven other states, gay couples are granted all the rights that are granted to heterosexual couples, except the right to marry. Same-sex couples raise children with the same rights and responsibilities, become foster parents, can make medical decisions for a partner, etc. Nonetheless, as the administration's brief puts it, without giving any reason, Proposition 8 forbids committed same-sex couples from celebrating their union in marriage and instead, relegates their unions to the lesser status of domestic partnership. That distinction, the brief argues, denies same-sex couples the right guaranteed in the Constitution for all persons similarly situated to be treated equally.
If the court were to agree with that argument, seven other state laws would fall; laws in Hawaii, Delaware, Illinois, Nevada, New Jersey, Oregon and Rhode Island. But some 30 other states would retain their laws - at least, for the time being. The administration is basically telling the court it can wait to deal with those states where there's greater resistance to gay marriage - though the strong implication is that some day in the not-too-distant future, there will be a reckoning for those states, too.
For now, though, the brief is a subtle acknowledgment of the fact that public opinion about same-sex marriage is changing at a once unimaginable speed. And if the court can kick the can down the road a bit, lots more states probably will legalize same-sex marriage on their own, making it a lot easier and less controversial for the court to strike down any remaining laws.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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