Report: Prop 8 opponents lobbying DOJ to side with them in Supreme Court gay marriage case

posted at 7:41 pm on December 10, 2012 by Allahpundit

Nothing surprising about this, but in case there was doubt, here’s Greg Sargent to dispel it:

The Obama Justice Department is not saying whether it will address this question. But sources tell me the legal team representing the plaintiffs in the Proposition 8 case — Ted Olson, David Boise, and Ted Boutrous — plan to lobby the administration to publicly declare that the right to gay marriage is protected by the constitution, and to file a legal brief supporting their argument to that effect.

This would be a big, big move on the administration’s part. And Obama must do it, for two reasons. First, because it could help influence the Supreme Court to reach a broad conclusion on the constitutionality of gay marriage. Second, weighing in could help prepare public opinion to accept this right, too.

One of the overlooked footnotes to O’s cynical “evolution” on gay marriage back in May was that he supported legalization at the state level but not as a matter of one-size-fits-all national policy. He was explicit about it too, purely as a way to reassure religious Democrats opposed to SSM that he wouldn’t try to impose his policy preferences in this area. The One hates federalism, but if he has to nod at it in order to cover his ass with his base before an election, he’ll do that. Remember?

At a certain point, I’ve just concluded that– for me personally, it is important for me to go ahead and affirm that– I think same-sex couples should be able to get married. Now– I have to tell you that part of my hesitation on this has also been I didn’t want to nationalize the issue. There’s a tendency when I weigh in to think suddenly it becomes political and it becomes polarized.

And what you’re seeing is, I think, states working through this issue– in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.

I told you on the day he said that that it was another politically calculated charade and that if/when SCOTUS came down from the mountain with the tablets proclaiming gay marriage a matter of equal protection, the White House would celebrate it euphorically even though constitutionalizing this issue directly contradicts Obama’s argument in the excerpt above. And that’s precisely what’ll happen. Sargent, in fact, barely nods at O’s stated federalist position, and why should he? It’s a joke, designed at the time simply to temper the backlash among potential Obama voters to his endorsement of SSM. Now that he’s safely reelected, though, the charade can drop and O can order the DOJ to argue that, yes indeed, gay marriage should be legal from coast to coast as a matter of inviolable constitutional principle. I think that’d be incredibly stupid, as it’ll only compound the outrage among social conservatives and federalists once the Court short-circuits the democratic process and imposes SSM by Obama-endorsed judicial fiat. The pro-gay-marriage side is winning the culture war on this and will eventually win the war at the polls as older voters die off, but evidently the left cares less about building abiding respect for the legitimacy of SSM than in seizing its chance in court no matter what that means for embittering the opposition. The Court’s legitimacy will be damaged too, which is probably the main counterweight in Kennedy’s mind to the temptation of writing yet another watershed opinion on gay rights. If O really does care about broad acceptance of SSM, he’ll back off on the Prop 8 case and give SCOTUS a wide berth to rule narrowly. But Obama being Obama, it’ll be awfully hard to resist a chance to impose a new rule nationally with one fell swoop.

Just one question: Hasn’t he already argued, essentially, that gay marriage should be legal under the Equal Protection Clause? When the DOJ decided last year that it would no longer defend DOMA, it gave this reasoning:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.

Read this post for a fuller explanation of why this language is significant, but the nutshell version is that Obama’s DOJ is arguing here that laws that discriminate against gays should be given special scrutiny by courts under the Equal Protection Clause because gays are a historically persecuted group. Traditionally, once the Supreme Court finds that special, or “heightened,” scrutiny is warranted, the law being challenged is almost always struck down as unconstitutional. Granted, the DOJ’s argument above is aimed at DOMA, which doesn’t deal squarely with gay marriage the way Prop 8 does, but its constitutional reasoning applies just as well to the latter law — and since SCOTUS has decided to review DOMA together with Prop 8 this term, it’s bound to apply the Justice Department’s anti-DOMA argument to Prop 8 as well. In other words, Obama’s legal team doesn’t necessarily have to weigh in on Prop 8. By weighing in against DOMA, it essentially already has.


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FlatFoot on December 10, 2012 at 9:57 PM

The bigot card doesn’t fly with me. You should know that my brother, whom I dearly loved, died of AIDS. I was first at his hospital bed although I lived furthest away. When he went through the harrowing nursing care and death due to AIDS of the guy he lived with, do you know who he called for emotional support? My husband and I, conservative Christians though we were. I know more about the pain of those in the homosexual lifestyle than you think I do.

Never think that because someone says a behavior is wrong and defends marriage that the person is a bigot. The person is upholding the truth.

(And name calling is a propaganda trick).

INC on December 10, 2012 at 10:05 PM

Sodomy, sodomy fight, fight fight. (Male cheerleaders in tutus).

Mason on December 10, 2012 at 10:06 PM

You should know that my brother, whom I dearly loved, died of AIDS. I was first at his hospital bed although I lived furthest away.

So if he died of Cancer would you be telling people what to eat or to wear sunscreen?

You should be ashamed of using your brother’s death in this discussion. Everybody dies. Therefore everybody knows somebody dead. So what?

Capitalist Hog on December 10, 2012 at 10:08 PM

INC on December 10, 2012 at 10:05 PM

Face it hon, you’re a homophobe bigot. Plain and simple.

Sorry about your brother — but I have no idea wtf that has to do with anything at all regarding your bigotry. If that’s supposed to be some kind of indicator that you’re not a bigot because your brother got AIDS and he called you first from his deathbed — well sweety — that dog don’t hunt.

Fact is — you’re not ‘defending marriage’ or anything else — other than your personal world class bigotry.

FlatFoot on December 10, 2012 at 10:10 PM

But you know like I do, this is a fight on the margins, propelled by hetero progs.

It comes down to one ideological principle.

The right believes in the individual. The left believes the needs of the many outweigh the needs of the few.

So we speak out against one of our own, and harbor an entire class of Benedict Arnold’s, allowing them to make a living at being traitors.

Not the left. Everyone must tow the line or be cast out.

So the gay community who believes marriage should be an option will sit quietly aside while the Freedom From Religion crowd hijacks the issue. Until that changes, #war.

budfox on December 10, 2012 at 9:18 PM

OK, let me see if I can explain this properly…

I agree with you on the Left/liberals/progressives. I abhor the loud, vocal gay rights groups and the liberal politicians that are…pardon the analogy…in bed with them. I’m a fiscal and social conservative myself…I’m pro-gun, pro-life, and a firm believer in personal responsibility. So on just about everything, I’m in agreement with you.

There’s one term I cringe at every time I see it…and that’s “gay community”. There is no more a gay community than there is a straight community. There is as much diversity amongst gays as there is within straights…you just cannot put a label on “gays” and think for one minute it’s anything close to universal.

What my point is, is that you shouldn’t be against gay marriage because you see it as liberal progressiveness. Sure, libs have hijacked the issue…but that doesn’t mean that all the passengers on the hijacked plane support them.

I hope that makes some sense. Supporting gay marriage doesn’t mean you support liberals or Leftist policies. It means you value stability, monogamy, raising families if that’s your thing (gay couples raise kids all over this country you know) and let gays have that same opportunity for that same stable, loving family unit that is an important cornerstone to all of society…and that transcends sexual orientation and political affiliation.

JetBoy on December 10, 2012 at 10:12 PM

Why the obsession with religion.

The issue is redefining marriage, the impact on society and culture and whether its worth it.
Change some tax classifications and contract law and call it a Civil Union. Much easier to accomplish and it would be fabulous! It could be a boon for the economy and artistic designers. Special cakes..special decorations..special ceremonies all requiring new, yet to be manufactured products!
Think out of the box…bone up on it.

Mimzey on December 10, 2012 at 10:17 PM

JetBoy on December 10, 2012 at 10:12 PM

Why are you pleading for understanding?

Crap doesn’t change until people stand up with strength. Seriously, You sound more like you crave approval than equality. IMNSHO, you need to lower your expectations a bit. The current voice that’s being heard on the right is one of inequality. It is also one of abject hypocrisy.

I’m sure that seems harsh but I have no problem being putting it straight to individuals on behalf of the group.

Capitalist Hog on December 10, 2012 at 10:20 PM

Mimzey on December 10, 2012 at 10:17 PM

Creative bigotry. Do you scrapbook as well?

Capitalist Hog on December 10, 2012 at 10:21 PM

Fact is — you’re not ‘defending marriage’ or anything else — other than your personal world class bigotry.

FlatFoot on December 10, 2012 at 10:10 PM

What makes that a “fact”? It sounds like simply your opinion. It’s possible that your the bigot who hates anyone who doesn’t see things your way.
I understand the effects of long, time drawn, feelings of being misunderstood and the irrational anger and hatred that can easily be born of that situation, but try not to hate those that are different than you.

Mimzey on December 10, 2012 at 10:23 PM

Of course marriage isn’t immoral. What is immoral is the way people are attempting to redefine it.

I think I’ve mentioned this article to you before. It answers many questions.

Robert George, Sherif Girgis, and Ryan T. Anderson. “What is Marriage?” Harvard Journal of Law and Public Policy vol. 34 (Winter, 2010): 245-287.

They’ve expanded it into a book, and it’s publication date is tomorrow.

http://www.amazon.com/What-Is-Marriage-Woman-Defense/dp/1594036225

INC on December 10, 2012 at 9:49 PM

I took a quick look at that book at the Amazon link you provided…I actually added it to my cart so I won’t forget to look into it when I have more time and have a less mushy brain from a long day. Check this thread tomorrow evening or remind me somewhere and I’ll certainly offer up my thoughts about it. Or simply email me at my gmail addy: JetsFanMetsFan@gmail(dot)com

JetBoy on December 10, 2012 at 10:24 PM

… And what ever happened to “let he who is without sin cast the first stone”?

Timin203 on December 10, 2012 at 9:57 PM

.
They ran out of stones. They’re all perfect.

Capitalist Hog on December 10, 2012 at 9:59 PM

.
Are you saying that we (Christians) are throwing stones at you?

When Jesus made that statement, they really were executing people that way.

listens2glenn on December 10, 2012 at 10:28 PM

Creative bigotry. Do you scrapbook as well?

Capitalist Hog on December 10, 2012 at 10:21 PM

You’re still a silly little thing.

Mimzey on December 10, 2012 at 10:28 PM

Why are you pleading for understanding?

Crap doesn’t change until people stand up with strength. Seriously, You sound more like you crave approval than equality. IMNSHO, you need to lower your expectations a bit. The current voice that’s being heard on the right is one of inequality. It is also one of abject hypocrisy.

I’m sure that seems harsh but I have no problem being putting it straight to individuals on behalf of the group.

Capitalist Hog on December 10, 2012 at 10:20 PM

I’m not “pleading” for anything…I’m just trying to state my thoughts and opinions just like everyone else. Is that OK with you? Should I just shut up and go away?

I’m not sure what I’ve said or did that makes you think I’m “craving approval” either…I don’t give a rat’s arse if you or anyone doesn’t “approve” of me, gays, gay marriage, or what car I drive.

And sorry, but I have no idea what you’re saying here:

you need to lower your expectations a bit. The current voice that’s being heard on the right is one of inequality. It is also one of abject hypocrisy.

I gotta go…Cheers HotAir-heads, tomorrow is another day!

JetBoy on December 10, 2012 at 10:35 PM

You should know that my brother, whom I dearly loved, died of AIDS. I was first at his hospital bed although I lived furthest away.

INC on December 10, 2012 at 10:05 PM

.
So if he died of Cancer would you be telling people what to eat or to wear sunscreen?

You should be ashamed of using your brother’s death in this discussion. Everybody dies. Therefore everybody knows somebody dead. So what?

Capitalist Hog on December 10, 2012 at 10:08 PM

.
Her point was, that good Christians aren’t squeamish about offering ministry in a one on one, personal way to homosexuals.

Of course, that’s contingent upon the homosexual’s willingness to receive from them.

listens2glenn on December 10, 2012 at 10:35 PM

I gotta go…Cheers HotAir-heads, tomorrow is another day!

JetBoy on December 10, 2012 at 10:35 PM

.
It’s been a pleasure arguing with you . . . . . . we’ll do it again, sometime.

listens2glenn on December 10, 2012 at 10:37 PM

What makes that a “fact”? It sounds like simply your opinion. It’s possible that your the bigot who hates anyone who doesn’t see things your way.
I understand the effects of long, time drawn, feelings of being misunderstood and the irrational anger and hatred that can easily be born of that situation, but try not to hate those that are different than you.

Mimzey on December 10, 2012 at 10:23 PM

Was I talking to you?

Nope.

Butt out Buttinsky.

BTW, sparky — You’re = You are

FlatFoot on December 10, 2012 at 10:53 PM

“How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.”
Abraham Lincoln

The truth is the truth.

njrob on December 11, 2012 at 1:05 AM

Such a stupid thing to have such bitter fights over.

Homos need to know that having a piece of paper that says “marriage license” changes exactly no one’s mind about the morality or legitimacy of your relationship. People who don’t like you or your lifestyle are still not going to like it, and they’re not going to shut up about it either. If what you really crave is approval from Mommy and Daddy and that kid who bullied you in grade school, this piece of paper isn’t going to give it to you. If you’re a guy who wants to wear a wedding dress and throw yoursdefl a fabulous party, you can do that without having an official piece of paper that says “marriage license.” You can do pretty much anything you want to except file a joint federal tax return. So stop with the civil rights bullsh!t and just admit that you want the tax break, because that’s all the piece of paper gives you.

Straight people need to know that letting homos have that piece of paper and throw themselves weddings is not going to destroy a society that is already pretty much destroyed.

I’ve made the argument here for a long time that only man-woman relationships deserve state recognition and support, because they are inherently unequal and children are vulnerable. The real problem we have in America is that not enough straight people are getting married, not that gay people are.

rockmom on December 11, 2012 at 10:46 AM

It does bother me that Olson et al are declaring that marriage is a “right”…it’s not, but equal access to legally recognized marriage, and access to state benefits, for gay couples is a right under the equal protection clause of the constitution. There is a difference, and it should be made clear.

JetBoy on December 10, 2012 at 8:22 PM

Gays have access to marriage as it exists. What you want is to change marriage itself to make it appealing to homosexuals.

And even that is not really the goal. The real goal is to try to make homosexual behavior officially recognized as “normal,” then use that recognition against anyone who does not agree that homosexuality is just as normal as normal sexuality.

Changing the definition of marriage to suit about 1% of the population does not make sense.

tom on December 11, 2012 at 5:04 PM

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