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The Obama admin does another half-measure, calling for marriage equality — in a limited scope. It won’t weigh in to clear the way for equality nationwide – punting to SCOTUS. Here is the fairly deflating news (if you’re in a state with a marriage amendment), or elating endorsement if you’re in a handful of states (Lyle Denniston at SCOTUSblog the brief is here):
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 (whose Proposition 8, which denies marriage to couples who already have all of the other marital benefits, would fall), Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
Beyond those eight, nine other states already recognize full marriage rights for same-sex couples. Three have done so as a result of state court rulings (Connecticut, Iowa, and Massachusetts). Five have done so by state legislatures’ passage of equality laws (Maryland, New Hampshire, New York, Vermont, and Washington), and one by voter-approved ballot measures (Maine). The legislatively approved equality laws in Maryland and Washington were ratified last November by voters in statewide balloting. Washington, D.C., also allows same-sex marriages.
The silver lining:
The administration brief did not take an explicit position on how its standard might apply to states that do not now provide civil unions or other broad marriage-like rights as the eight non-marriage states do. But the logic of its constitutional test might, in fact, jeopardize same-sex marriage bans as a general proposition.
Attorney General Eric Holder issued the following statement today on the U.S. government’s filing in Hollingsworth v. Perry:
“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.”
Some articles up now:
* Obama files brief on Prop 8 (Washington Blade, Chris Johnson)
* Obama Administration Urges Supreme Court To Strike Down California Anti-Gay Marriage Ban (Buzzfeed, Chris Geidner)
* Obama admin argues Prop 8 unconstitutional in Supreme Court brief (Equality on Trial, Scottie Thomaston)
Reactions are below the fold…
Rea Carey, Executive Director, National Gay and Lesbian Task Force:
“President Obama made history when he became the first sitting president to explicitly support the freedom to marry for same-sex couples. With these amicus briefs, he has backed his powerful words with concrete action. The nation’s high court will consider one of the most defining civil rights issues of our time when it hears the Prop. 8 and DOMA cases. It makes perfect sense that our country’s highest leader should weigh in and urge the court to affirm our Constitution’s promises of liberty, equality and human dignity. In doing so, the Obama administration is standing for all families and for fundamental American values.”
Evan Wolfson, founder and president of Freedom to Marry:
“In his inaugural address, President Obama spoke of the nation’s destination: liberty, equality, and inclusion for all. In its friend of the court brief filed today, the Justice Department provided the legal roadmap, affirming the constitutional freedom to marry and calling on the Supreme Court to uphold the Constitution’s command of equal protection under the law. It is time for the justices, like our president and the majority of Americans, to embrace the freedom to marry and get our country on the right side of history.”
Human Rights Campaign:
“President Obama and the Solicitor General have taken another historic step forward consistent with the great civil rights battles of our nation’s history,” said Human Rights Campaign President Chad Griffin, co-founder of the American Foundation for Equal Rights (AFER), which brought the challenge to Proposition 8. “The President has turned the inspirational words of his second inaugural address into concrete action by urging our nation’s highest court to put an end to discrimination against loving, committed gay and lesbian couples and their families.”
While the Justice Department has actively argued against the constitutionality of DOMA in court, this brief marks the first time the Obama administration has weighed in on the constitutionality of a state law barring marriage for same-sex couples. The Solicitor General’s brief joins dozens of amici supporting the Perry plaintiffs, including major businesses, prominent Republicans, faith groups, civil rights organizations, legal scholars, and many others.
“The straightforward proposition that our Constitution guarantees all Americans equal protection of the laws, including marriage laws, has always been central to our case,” added Griffin, who recruited the expert legal team of Theodore B. Olson and David Boies to argue the case. “It is enormously gratifying to know that today, that the President and U.S. Government are standing with us against marriage discrimination.”
Adam Umhoefer, executive director of the American Foundation for Equal Rights (AFER), the sole sponsor of the Perry case, issued the following statement:
“The brief filed by the Solicitor General is a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded. It is an unprecedented call to action by our Government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law. AFER looks forward to having Solicitor General Verrilli and the Federal Government by our side as we make the case for marriage equality for all before the Supreme Court.”
Rick Jacobs, founder and chair of the Courage Campaign:
“We applaud President Obama for standing-up for millions of Californians who simply want to marry the person they love. The two Supreme Court cases this summer will be a watershed moment for equality and President Obama has put his Administration squarely on the right side of history. Last November, voters from Maine to Washington stood up for equality. Now it’s time for the Supreme Court to catch up with the American public. Discrimination and hatred have no place in a country founded on the principles of liberty, justice and equality.”
UPDATE: Added musings Fri AM — my above thoughts on this topic — obviously brief ones, since I’ve not been blogging about much of anything since-spine surgery — are a gut reaction from someone sitting in a state wholly dependent on a shaky SCOTUS that looks like it’s about to up-end the Voting Rights Act — again NC is now run by the Teapublicans because progressives were asleep at the wheel in 2010 and we’ll pay for it for at least another decade.
This week it would have been a relief to see the WH brief to be more declarative, but it is no surprise that it erred on not doing so. The dance around it is emotionally unsatisfying (yet again); stating that is simply my declaration of frustration that we’re left with “states rights” affirmed for one iota longer by this WH because it’s historically hideous. There is no surprise there. That doesn’t rain on the parade of the folks dancing in the aisles about the historic nature of the brief. There’s plenty of celebration going on throughout the Internets to offset my more muted response.
12 Comments
I think the court put the Obama administration in a difficult position by hearing both the Prop 8 and DOMA cases in the same session.
The administration is ostensibly against DOMA because the law doesn’t allow the federal government to respect the rights of states which allow gay marriage. So, it’s making a states’ rights argument.
If, in the Prop 8 case, the administration made an argument that doesn’t respect states’ rights NOT TO allow gay marriage, the arguments would seem to be in conflict.
Then one could ask, “Is the administration in favor of states’ rights or not?”
The Obama administration’s states’ rights argument in its DOMA amicus brief has adversely effected its ability to make a stronger argument in the Prop 8 brief.
You know Pam, I’d be a lot more impressed with Obama if he issued an historic brief promising not to slaughter American citizens with drones (on American soil–he’s already slaughtered American citizens, including a 16 year old American citizen, outside of American soil so that is a lost cause already). Which for some strange reason he will not do.
So, let’s just imagine a predator drone flying over a newlywed happy gay couple and disposing of them extra judicially. Or maybe they won’t be slaughtered. Maybe instead they’ll be picked up and deposited in Guantanimo Bay, where they can consummate their nuptials in between torture sessions–simply on suspicion alone that they are “militants”, as Obama has claimed he has the right to do already.
I mean, seriously Pam–where the hell are your priorities? You’re making a big deal out of a dog bone when there’s a monster hiding behind the bush getting ready to eat you.
I’d find this to be great for the LGBT community, except we’re talking Scalia, Roberts Court, SCOTUS, with the final say.
N like Obama did with the Voting Rights Act coming up for review, he sent a letter, not so sternly worded, and leaving all KINDS of out for SCOTUS to supercede him completely.
Voting Rights Act will get neutered, and so will LGBT rights.
Look at the rest of his ‘successes’ to date, shit’s gettin neutered faster than a spay clinic.
In any event, my best wishes for the LGBT community on this and all equality issues. We’re all in the same deepening waters and treading our best in that regard.
Perhaps her priorities are not based on your imaginings.
Excuse me, my post on THIS TOPIC has nothing to do with prioritizing one topic over another (nor will my opinion here ultimately change/affect Obama’s drone policy). My blog, my reaction to this news event. End of story. Feel free to blog about drones 24/7 if that makes you feel better.
I think the reading of the Administration’s brief as calling for “limited” marriage equality is a limited reading. While not calling explicitly for the overturn of anti-marriage provisions nation-wide, the brief lays a solid foundation for it — the whole 14th Amendment argument is key. This is Obama we’re talking about — it’s not all on the surface, and the word is he was directly involved. (And the Court could decide to take the bit in its teeth and go for it. Maybe. Not holding my breath.)
I wish he wouldn’t do these last-minute stunts like this, but he moves at his own pace and with his own strategy. If the Court accepts the Administration’s argument, watch for all those marriage amendments to fall as soon as someone gets around to filing suit — and he still gets to be pro-states’ rights on the issue.
(It’s not such a leap from “once you’ve granted it you can’t take it away” to “the right to marry is fundamental and inalienable” — the government doesn’t grant rights, it recognizes them, and has to have a damned good reason for withholding them.)
Applause.
As a fellow North Carolinian, I mostly agree with Pam’s response.
My feelings also include… why the #^!! can Obama take the personal time to deal with a brief, but not pick up a pen and sign a frickin non-discrimination order?!
Clearly, he has the power to sign a non-discrimination order. He simply doesn’t want to.
This brief argues that “classifications based on sexual orientation call for application of heightened scrutiny” (page 6)
It then argues that Proposition 8 fails to meet heightened scrutiny:
“Petitioners defend the constitutionality of Proposition 8 on the basis of three governmental interests purportedly served by the initiative: (i) an interest in promoting responsible procreation and child-rearing; (ii) an interest in proceeding with caution before recognizing same-sex marriage; and (iii) an interest in restoring democratic authority over an issue of significance to the state’s citizens. None of those interests satisfies heightened scrutiny.” (page 18)
As such, it a pretty good brief. Heightened scrutiny is the same level of scrutiny used for sex-based discrimination. If the Supreme Court coalesces a majority around this, Proposition 8 would be revoked and (most likely) most places with Civil Unions (or any lesser form of marriage) would presumably be replaced with marriage. This is why SCOTUSblog calls it the “eight-state solution”- it would presumably directly affect current law in California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
While I personally would prefer a decision that would extend equal marriage to all states and territories, I haven’t analyzed each individual Justice’s opinion on hints of how they may render their opinions (the only Justice I was certain of was O’Connor, and she retired); I think it’s quite possible that the drafter(s) thought that this was the most pro-marriage opinion that had a reasonable chance of getting accepted.
That said, if this became the opinion of the court, it would create a foundation upon which to build in not just marriage equality- but equality overall; a ruling opinion of sexual orientation as a class for heightened scrutiny would, by itself be worth a lot in future cases – it could be used to attack any specifically anti-LGB law, and would be useful in taking down current, discriminatory laws.
As for the date of the opinion, many lawyers consider it good practice to file just before the filing deadline. For all we know, they may have drafted it months ago; the advantage of waiting is that if anything happens between the time you drafted it and the filing date, you can change your filing with no additional effort (or chance of being turned down) on your part.
In the Windsor case before the court, doesn’t the Federalist Society-darling Chief Judge of the Second Circuit already give us heightened scrutiny as a standard?
It seems the Obama administration is playing catch-up to a right wing judge.
I think a couple of judges have opted for either intermediate or heightened scrutiny in these cases. The Administration brief certainly lays out a strong case for it.
Yes.
You could argue that it’s in no small part a re-statement of the United States v. Windsor using the facts of this case; it’s even fairly likely that that case was a major source used in writing this brief. However, that in itself has some value, as the facts in United States v. Windsor are different.