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. In May, in an ABC interview, he for the first time endorsed same-sex marriage from a personal point of view, but he went on to say that the decision on legalizing gay marriage should be left to the states, where marriage matters are traditionally governed.
"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. In that case, ironically, the federal government took no position in the Supreme Court.
So what will Obama do now that he faces similar questions in a case about sexual orientation, not race?
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 and maintaining a pretty studied public silence, hoping to avoid the impression that the gay community is pressuring the administration.
Still, lawyers who argue regularly before the court are not so sure that the administration's brief, whatever it says, will make a big difference to the justices.
"I'm never going to tell you that the solicitor general's position doesn't matter," says former Bush administration Solicitor General Paul Clement. But in this case, he says, "I think it matters less."
Clement was hired by the House Republican leadership to defend the constitutionality of the Defense of Marriage Act, or DOMA, in a case that is paired with the Proposition 8 case in the Supreme Court. The reason he thinks the administration's brief in the Proposition 8 case matters less, he says, is "because we already know what their position is on DOMA and one can extrapolate."
In the DOMA case, the Obama administration argues that the federal law is unconstitutional because it bars federal benefits to legally married same-sex couples — benefits that go automatically to legally married heterosexual couples.
Supreme Court advocate Tom Goldstein, founder of SCOTUSblog, makes a different point — that sometimes Supreme Court briefs are aimed at more than one audience. He notes that in a truly historic case like this one, "I think part of what's going on ... is a statement about what is morally right and wrong. And so I think it could matter to Americans much more than it matters to the Supreme Court."
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