Obama Administration to File Gay Marriage Briefs

The Obama administration has been under pressure to file briefs in both the DOMA appeal to the Supreme Court and in the Proposition 8 appeal as well.  Now, the decision has apparently been made to file the briefs and the speculation has now turned to what position the Obama administration and Justice Department will take on marriage equality.  With France and Britain moving towards full gay marriage (France will likely enact full passage before the U.S. Supreme Court enters its rulings), there is added pressure on Obama to come out for a constitutional right to marriage even though Obama seems to constantly dance around the issue.  A piece in NPR looks at some of the ongoing speculation as to how far Obama will go in arguing for marriage equality.  Here are highlights:

The Obama administration faces tricky political and legal questions on the subject of gay marriage. By the end of this month, the federal government is expected to file not just one but two briefs in a pair of same-sex marriage cases at the U.S. Supreme Court.

But it is the Proposition 8 case from California that poses the thornier questions for the administration — questions so difficult that the president himself is expected to make the final decision on what arguments the Justice Department will make in the Supreme Court.

Prop 8, as it is known, is the California ballot initiative banning same-sex marriage. It was narrowly approved by state voters in 2008. A federal district court struck down the law as unconstitutional discrimination in 2010. A federal appeals court later agreed, but on narrower grounds. Because there was a period of time in which same-sex couples could legally marry in California, the court said, it was unconstitutional for the state, through the ballot initiative, to take away a fundamental right it had previously granted.

The state, under both Republican and Democratic governors, has declined to defend the measure in court. So its ban on gay marriage is being defended by the sponsors of the initiative.

The Obama administration is not required to file any brief in the case because it does not directly involve federal law. But administration sources say the government will file a brief. Still unresolved is what the brief will say. And in this case, much more than most, there are numerous legal routes that the government can take.

The ultimate question — the one perhaps most people want an answer to but may not get — is whether same-sex couples have a constitutional right to marry. A Supreme Court decision that says yes to that would invalidate laws in some 30 states. But there are many legal avenues short of such a far-reaching argument that would invalidate Proposition 8 in California and leave laws in other states intact.

What makes this even dicier is that President Obama has changed his position, seemingly a lot, over the past eight months.  .   .   .   .

"It is important for me to go ahead and affirm that I think same-sex couples should be able to get married. And I continue to believe that this is an issue that is going to be worked out at the local level, because historically this has not been a federal issue," he said.

But eight months later at his inauguration, the president seemed to take a more expansive view. "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," Obama said.  That language suggests the president believes in a more basic constitutional right to marry, analogous to the right enunciated in a unanimous 1967 Supreme Court ruling that struck down laws barring interracial marriage.

His administration could make a bold, full-throated defense of the right to marry, an argument that Obama seemed to suggest at his inaugural. Or it could argue a number of lesser positions: That California, having extended the right to marry to gay couples for a window of time, could not revoke the right. Or that California, like some other states, has a law extending all rights to same-sex couples, except the right to marry, and that such a distinction amounts to discrimination. Or it could argue that since the state is not defending the law, the case does not belong in court at all — that the sponsors of the initiative have no legal standing in court.

For the gay community, and for those advocating traditional marriage between a man and a woman, the position the government takes in this case is hugely important — if nothing else, as a symbol. Both sides have made formal presentations at the Justice Department urging the administration to take their side. But the deadline has already passed for a brief siding with Proposition 8 supporters, leaving only the question of what a brief on the other side will say.  Same-sex marriage advocates are holding their collective breath for now. . . .

Personally, I hope Obama summons the courage to  argue for a bold, broad ruling that would bring marriage equality nationwide (it's the only way Virginia will see marriage equality any time in the nearer future).  Whether he will summon such courage is the big question.  Those who said his personal support of gay marriage would hurt him in the 2012 election proved wrong.  A broad approach argument would mere place him in alignment with leading modern democracies and traditional US allies.