At this point, after that ringing endorsement of gay equality in his inaugural, it’d be news if he wasn’t considering it. Still worth noting, though, partly because he has just one more week to make a decision and partly because, if he does wade in against Prop 8, it’ll mark the final stage of his phony, carefully choreographed “evolution” on gay marriage:
The Obama administration is quietly considering urging the Supreme Court to overturn California’s ban on gay marriage, a step that would mark a political victory for advocates of same-sex unions and a deepening commitment by President Barack Obama to rights for gay couples…
A final decision on whether to file a brief has not been made, a senior administration official said. Solicitor General Donald Verrilli is consulting with the White House on the matter, said the official, speaking only on condition of anonymity because the official was not authorized to address the private deliberations publicly…
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.
I wrote about this more extensively two months ago, after Greg Sargent reported that Boies and Olson were set to pitch the White House on filing a “friend of the court” brief with the Supremes arguing against Prop 8. Why would it be significant if O did that? Because, as recently as late last month, Jay Carney was still telling reporters that Obama thinks this issue should be left to the states. He is, almost uniquely given his big-government program, a federalist on this subject. And of course, he’s a federalist of convenience: Endorsing states’ rights in this area was his way of hedging against a political backlash to his announcement last year that he was now officially pro-gay-marriage. No need to panic if you disagreed with him about that; your state legislature, not the federal government, would still get to decide the rules on this where you live. Except now maybe it won’t. If O ends up intervening in this case and arguing that the Equal Protection Clause protects the rights of gays to marry, he’d be explicitly supporting the idea that SSM should be legal from coast to coast and beyond the power of even Congress, let alone your home state, to prohibit it.
Realistically, though, there’s no way he won’t intervene. His base would be appalled that he refused to lend the authority of the presidency to what may be the biggest gay-rights decision in American history. He’ll have to file a brief and he’ll have to side with Olson and Boies. Maybe he’ll hedge a bit by arguing, as the Ninth Circuit did, that the Court’s ultimate ruling should apply only to California and not to the entire United States. I frankly don’t understand that argument — if Prop 8 is unconstitutional, how are similar bans on gay marriage in other states not unconstitutional also? — but it’d allow O to pretend for low-information voters that he’s not calling for a sweeping national solution to this issue, which he could spin as being kinda sorta federalist-ish (even though in reality an equal protection ruling here would torpedo California’s right to set its own marriage laws). I think his base would be okay with that too; once there’s a SCOTUS ruling on the books vis-a-vis California, lower federal courts could get to work extending it to their own jurisdictions. You won’t get nationalized gay marriage in one fell swoop, but you’ll get it over time piece by piece. And O knows that, of course. This reminds me a bit, in fact, of the Democrats’ strategy on immigration reform, where they’re willing to take a more moderate position because they know the courts will eventually help erode the more conservative elements of the deal. So that’s my prediction — that O will side with Olson and Boies, but that he’ll also ask the Supremes to limit the consequences of their ruling to California. We’ll know in a week if I’m right.
Here he is yesterday talking about this very subject with KGO in San Francisco. Skip to 5:25 for the key bit. Exit quotation: “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.” Hmmmm.