President Barack Obama’s inaugural address has raised hopes among civil rights advocates that his administration will urge the U.S. Supreme Court to allow gay marriage, at least in California and perhaps nationwide.
Issuing his strongest call yet for same-sex rights, Obama said gays should be “treated like anyone else under the law” and likened the cause to the struggles of blacks and women. It was the first time a president had mentioned gay rights in an inaugural speech.
Obama spoke only a few feet from the nine justices who in March will take up gay marriage for the first time, considering two cases including a challenge to a California ballot initiative barring same-sex nuptials. The administration must decide by the end of February whether it will argue against the ballot measure or stay out of the fray.
“I’m encouraged by what the president said,” said Theodore Olson, the former Republican U.S. solicitor general who is leading the challenge to Proposition 8, as the initiative is known. “I can’t see the president sitting this one out.”
Olson and his colleagues met last week with Solicitor General Donald Verrilli, Obama’s Supreme Court lawyer, to seek the administration’s support. Backers of the ballot initiative, represented by Washington lawyer Charles Cooper, will sit down with Verrilli tomorrow. The solicitor general traditionally gives an audience to litigants before taking a position.
Olson’s team of lawyers includes David Boies, his opponent from Bush v. Gore, the Supreme Court case that resolved the 2000 presidential election deadlock.
Gay voters helped propel Obama to re-election, favoring the incumbent over Republican nominee Mitt Romney 76 percent to 22 percent, exit polls showed.
The decision on Proposition 8 in some ways is a delicate one for Obama: He has previously coupled his personal support for gay weddings with a call for states to continue taking the lead role on defining marriage.
“This is an issue that is going to be worked out at the local level because, historically, this has not been a federal issue,” Obama told ABC News in May when he announced his support for same-sex marriage.
His press secretary, Jay Carney, reiterated that position yesterday, saying “the president believes that it’s an issue that should be addressed by the states.”
Defenders of Proposition 8 say two lower courts ignored states’ rights when they said the measure violated the Constitution’s equal protection clause.
Those rulings are “the antithesis of saying this is a state decision,” said Brian Brown, president of the Washington-based National Organization for Marriage. “Now all of these millions of American votes have been thrown in the trash because we just found this new right to redefine marriage in the Constitution.”
Proposition 8, approved by voters in 2008, reversed a five-month-old decision by the California Supreme Court. That ruling had said the state constitution guaranteed the right to gay marriage.
In their challenge, Olson and Boies set out to win a Supreme Court ruling establishing same-sex marriage as a constitutional right. At the appeals court level, they instead won a narrower ruling with limited applicability beyond California’s borders.
The San Francisco-based 9th U.S. Circuit Court of Appeals said Proposition 8 violated the constitutional guarantee of equal protection by stripping same-sex couples of a right they once had -- and that heterosexual couples would continue to possess.
The administration has several options short of asking that same-sex marriage be declared a constitutional right nationwide.
Verrilli could urge the Supreme Court to adopt the appeals court’s reasoning, limiting the impact to California.
He could also argue that the backers of Proposition 8 lack the legal right to defend the measure on appeal. When the Supreme Court agreed to hear the case, it told the parties to file briefs on that issue.
Verrilli could defend Proposition 8 on states-rights grounds, although lawyers on both sides say that’s highly unlikely after the inauguration comments. “I’d be stunned,” Olson said.
A more plausible scenario would be for the administration to say nothing -- an approach the solicitor general sometimes adopts when the court is reviewing a state law and no federal statute is involved.
When the Supreme Court considered interracial marriage in 1967, President Lyndon Johnson’s administration took no position. The court ruled unanimously that interracial marriage was a constitutionally protected right.
Peter Ferrara, general counsel of the American Civil Rights Union, said he expects the administration to get involved -- and argue against Proposition 8. The group, which opposes gay marriage, is based in Arlington, Virginia.
Cooper, the lawyer defending Proposition 8, declined to comment on the position the administration might take. Briefs backing Proposition 8 must be filed by Jan. 29. Filings opposing the measure are due Feb. 28.
Although solicitors general often take legal positions without consulting the White House, the president generally makes the decision in high-profile cases.
Obama is already backing gay rights in a second Supreme Court case that doesn’t directly involve access to marriage. The administration is urging the court to strike down a 1996 federal law that defines marriage solely as an opposite-sex union. That law, the Defense of Marriage Act, blocks gays from claiming the same federal tax breaks and other benefits that opposite-sex spouses receive.
In that case, the administration is making an argument that could bolster the case against Proposition 8. Verrilli argues that courts should give “heightened scrutiny” to laws discriminating against gays, just as judges already do in cases involving race or gender.
In his inauguration comments, Obama hinted he might be prepared to go further and directly endorse gay marriage in court.
“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said. “For if we are truly created equal, then surely the love we commit to one another must be equal, as well.”
Ferrara, a gay marriage opponent, said Obama “may want to do like he did on the health-care decision and basically try to intimidate” the justices. Ferrara was referring to Obama’s signature health-care law, which the court upheld last year.
Paul Smith, a Washington lawyer who backs gay rights, questioned how much impact the president’s position ultimately would have on the outcome of the case.
Obama’s position “matters to a lot of people,” said Smith, “but I don’t know that it matters at all to the Supreme Court.”
The cases the court will review are United States v. Windsor, 12-307, and Hollingsworth v. Perry, 12-144.