President Barack Obama may be poised to show new support for gay marriage as a deadline approaches for his administration to take a stand in the U.S. Supreme Court on a California ban on same-sex nuptials.
A month after urging legal equality for gays in his inauguration speech, Obama could use the high court case as an occasion to call for same-sex marriage rights nationwide.
An administration filing last week, in a separate Supreme Court case involving a law that limits federal benefits for same-sex couples, may have foreshadowed a call to overturn California’s ban under Proposition 8. In arguing against the federal law, Obama’s lawyers said gays have endured a history of discrimination and now should be afforded special protection under the Constitution, much like racial minorities and women.
“The undisputed 20th-century discrimination has lasted long enough,” wrote U.S. Solicitor General Donald Verrilli, the president’s top Supreme Court lawyer.
Dozens of Republicans plan to file a court brief backing such unions. The American Foundation for Equal Rights, which is backing the Proposition 8 challengers, said more than 80 people are signing its brief, including former presidential candidate and Utah Governor Jon Huntsman and former New Jersey Governor Christine Todd Whitman.
In his filing last week, Verrilli said laws barring same-sex marriage were evidence of discrimination. He pointed to the passage of Proposition 8 as an indication that gays lack the political clout to ensure equality on their own.
Proposition 8, approved by California voters in 2008, reversed a decision by the California Supreme Court that the state constitution guaranteed the right to gay marriage. A federal appeals court struck down the ballot initiative last year. A court stay has kept same-sex marriage banned during the appeals.
The administration must file any brief opposing the California ban by Feb. 28. It also might take a more incremental approach, urging the court to reinstate same-sex marriage in California without affecting the 40 other states that prohibit the practice. And Obama has the option not to get involved in the case at all. Gay-rights activists say they are optimistic that the president will take their side, at least to some degree.
“Our aspirations have always been SG support of our position on all counts,” said Theodore Olson, a Washington lawyer who served as President George W. Bush’s solicitor general and is leading the legal fight against Proposition 8. “But we’ll be pleased with whatever we can get.”
Both sides in the California case met with Verrilli in recent weeks to make their case, as is customary when the solicitor general is considering taking a position in a Supreme Court dispute.
A call to make same-sex marriage a constitutional right would be a shift for the president. Obama opposed it when he ran for the White House in 2008. Even after coming out in support last year, he has said states should continue to be the ones to make the decision.
Defenders of Proposition 8 say voters shouldn’t be precluded from reinstating the understanding of marriage that has applied for virtually all of human history.
“Our Constitution does not mandate the traditional gendered definition of marriage, but neither does our Constitution condemn it,” Charles Cooper, the Washington lawyer representing the sponsors of Proposition 8, argued in court papers.
The court will hear arguments on the California case on March 26. The following day the justices will consider the federal law, the Defense of Marriage Act. The court is scheduled to rule on both cases by June.
The cases the court will review are United States v. Windsor, 12-307, and Hollingsworth v. Perry, 12-144.