WASHINGTON — Facing heightened expectations from gay rights
supporters, the Obama administration is considering urging the Supreme
Court to overturn California’s ban on gay marriage — a move that could
have a far-reaching impact on same-sex couples across the country.
The administration has one week to file a friend-of-the-court brief
with the justices outlining its opinion on the California ban, known
as Proposition 8. While an administration brief alone is unlikely to
sway the high court, the government’s opinion does carry weight with
Opponents of the Proposition 8 ban believe the president signaled his
intention to file a brief when he declared in last month’s inaugural
address that gays and lesbians must be “treated like anyone else under
the law.” An administration official said Obama — a former
constitutional law professor — was not foreshadowing any legal action
in his remarks and was simply restating his personal belief in the
right of gays and lesbians to marry, though the official said the
administration was considering filing a brief.
The Proposition 8 ballot initiative was approved by California voters
in 2008 in response to a state Supreme Court decision that had allowed
gay marriage. Twenty-nine other states have constitutional amendments
banning gay marriage, while nine states and Washington, D.C.,
recognize same-sex marriage.
Solicitor General Donald Verrilli is consulting with the White House
on the matter, according to a senior administration official, who
spoke only on condition of anonymity because the official was not
authorized to address the private deliberations publicly.
While the Justice Department would make the filing, the president is
almost certain to make the ultimate decision on whether to do so.
“I have to make sure that I’m not interjecting myself too much into
this process, particularly when we’re not a party to the case,” Obama
said Wednesday in an interview with San Francisco’s KGO-TV.
He said his personal view was that gay couples should have the same
rights as straight couples and said his administration would do
whatever it could to promote that principle.
Obama has a complicated history on gay marriage. As a presidential
candidate in 2008, he opposed the California ban but didn’t endorse
gay marriage. As he ran for re-election last year, he announced his
personal support for same-sex marriage but said marriage was an issue
that should be decided by the states, not the federal government.
To some, Obama’s broad call for gay rights during his Jan. 21
inaugural address was a sign that he now sees a federal role in
“Our journey is not complete until our gay brothers and sisters are
treated like anyone else under the law,” Obama said during his remarks
on the west front of the Capitol. “For if we are truly created equal,
than surely the love we commit to one another must be equal as well.”
Seeking to capitalize on growing public support for gay marriage,
advocates are calling on the administration to file a broad brief not
only asking the court to declare California’s ban unconstitutional but
also urging the justices to make all state bans illegal.
“If they do make that argument and the court accepts it, the
ramifications could be very sweeping,” said Richard Socarides, an
attorney and advocate.
The administration could also file a narrower brief that would ask the
court to issue a decision applying only to California. Or it could
decide not to weigh in on the case at all.
The Supreme Court, which will take up the case on March 26, has
several options for its eventual ruling. Among them:
— Uphold the state ban on gay marriage and say citizens of a state
have the right to make that call.
— Endorse an appeals court ruling that would make same-sex marriage
legal in California but apply only to that state.
— Issue a broader ruling that would apply to California and seven
other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon
and Rhode Island. In those states, gay couples may join in civil
unions that have all the benefits of marriage but may not be married.
— Rule that the Constitution forbids states from banning same-sex unions.
For weeks, supporters and opponents of Proposition 8 have been
lobbying the administration to side with them.
Last month, Theodore Olson and David Boies, lawyers arguing for gay
marriage, met with Verrilli and other government lawyers to urge the
administration to file a brief in the case. A few days later, Charles
Cooper, the lawyer defending Proposition 8, met with the solicitor
general to ask the government to stay out of the case. Those kinds of
meetings are typical in a high court case when the government is not a
party and is not asked by the court to make its views known.
Boies and Chad Griffin, president of the advocacy group Human Rights
Campaign, also had a meeting at the White House on the case.
Ahead of next week’s deadline, nearly two dozen states have filed
briefs with the court asking the justices to uphold the California
Public opinion has shifted in support of gay marriage in recent years.
In May 2008, Gallup found that 56 percent of Americans felt same-sex
marriages should not be recognized by the law as valid. By November
2012, 53 percent felt they should be legally recognized.
One day after the court hears the California case, the justices will
hear arguments on another gay marriage case, this one involving
provisions of the federal Defense of Marriage Act. The act defines
marriage as between a man and a woman for the purpose of deciding who
can receive a range of federal benefits.
The Obama administration abandoned its defense of the law in 2011 but
continues to enforce it.