The news here isn’t that O’s weighing in on the side of Ted Olson and David Boies. Technically he doesn’t need to get involved, but good luck explaining that to his base if he sits this one out and the decision comes back 5-4 in favor of upholding Prop 8 four months from now. They’ll want to know why he didn’t lend the imprimatur of the presidency to the biggest gay-rights case in U.S. history. What’s he supposed to tell them? That he needed to keep up the charade that he’s in any way opposed to court-imposed legalized gay marriage for just a little bit longer?
The news also isn’t that O’s revealing himself once again to have been a liar on this issue. When he ran in 2008, he pretended to be against gay marriage to parry Republican claims that he was a devout liberal rather than the centrist “post-partisan pragmatist” his campaign touted him as. He finally dropped the facade last year — it’s politically safe now to support gay marriage, even in the GOP (sort of) — but he’s continued to insist that this issue should be left to the states because … I’m not sure why. Literally no one believes he sincerely feels that way, and since he’d already taken the plunge by endorsing legal gay marriage, he had little to gain politically from his phony federalism. The best I can do by way of a theory is to guess that O, instinctively, likes to posture as a “moderate” even when he’s pushing reliably liberal positions. (E.g., “the balanced approach.”) It’s good for his brand as the “reasonable” adult in the room in Washington, a vestigial version of the pragmatic independence he feigned in summer ’08. Plus, I suppose he might have thought that posing as a federalist on SSM would cushion the blow for opponents once he revealed his support for legalization. It’s not as big of a deal to find out that the president thinks gays should be allowed to marry if he’s qualifying that by saying you should get decide to your home state’s rules. But that was nonsense, as the DOJ’s brief confirrns, and anyone who didn’t see through it instantly is a fool.
No, the news is that the DOJ might be aiming higher than just Prop 8. No one’s seen their amicus brief yet as I write this, but both Politico and WaPo have sources hinting that this might be bigger than legalizing gay marriage in California. They might be making a play for the entire United States. Politico:
The Obama Administration is expected to take a strong stand Thursday in favor of marriage rights for gay and lesbian couples Thursday, filing a legal brief urging the justices to striking down Proposition 8, the California ballot measure that banned same-sex marriages in the state, a source familiar with the brief said.
In literal terms, the arguments in the Justice Department brief were limited to Prop. 8, but the legal conclusions amount to an argument that all bans on same-sex marriage violate the U.S. Constitution.
The Obama administration on Thursday will ask the Supreme Court to overturn California’s ban on gay marriage and take a skeptical view of similar bans elsewhere, according to a person familiar with the government’s legal filing in the California case.
While the administration’s friend-of-the-court brief in the Proposition 8 case does not call for marriage equality across the United States, it does point the court in that direction.
A Supreme Court ruling in line with the administration’s argument could have broad implications and almost certainly expand the rights of same-sex couples to wed.
Remember, the Ninth Circuit’s ruling striking down Prop 8 was deliberately written narrowly so that it would apply only to California. That was a strategic decision; the thinking was that the Supremes would be more likely to uphold the ruling knowing that the consequences were limited to one state, not all 50. Then, once that decision was on the books as precedent, lower federal courts around the country would/could use it to strike down gay-marriage bans in their own jurisdictions. The Ninth Circuit’s plan was, in other words, an incrementalist plan for legal gay marriage nationwide. Turns out that the DOJ might argue more aggressively than that and call, explicitly or implicitly, for legalizing gay marriage nationwide right now. Even if the brief limits itself to discussing only California, if the DOJ argues broadly that Prop 8 is unconstitutional because gays should have the same right to marry as straights under the Equal Protection Clause, then by that logic all gay-marriage bans everywhere in the U.S. are unconstitutional. The Supreme Court, if it sides with that logic, will implicitly make SSM legal everywhere. I thought Obama would once again be the fake centrist pragmatist on this by arguing against Prop 8 but doing it narrowly enough that his brief wouldn’t have national implications. Sounds like I was wrong.
Stand by for updates as we finally see the brief. Exit quotation from CNN: “Sources told CNN that Obama made the final decision over whether to file a brief and what to say.”
Update: The brief is out and it is indeed broad. I’m embedding it below, via BuzzFeed; scroll down to the “Summary of Argument” section starting on page 6. In a nutshell, the DOJ rejects the traditional arguments against gay marriage, most notably that marriage is for straights because it’s ultimately about procreation, and specifically endorses the legal theory that gays, like other minority groups that have been discriminated against historically, should enjoy special protection under the Equal Protection Clause. If the Court agrees with the DOJ on both of those points, it’s hard to see how any SSM ban anywhere survives. However, the DOJ does leave the Court with a tiny bit of wiggle room:
The Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here. Under California law, same-sex partners may “enter into an official, state-recognized relationship,” i.e., a domestic partnership. Pet. App. 48a. State law grants domestic partners all of the substantive rights and obligations of a married couple: domestic partners have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law * * * as are granted to and imposed upon spouses.” Cal. Fam. Code § 297.5(a). Same-sex partners in California may, inter alia, raise children with the same rights and obligations as spouses; adopt each other’s children; gain a presumption of parentage for a child born to or adopted by one partner; become foster parents; file joint state tax returns; participate in a partner’s health-insurance policy; visit their partner when hospitalized; make medical decisions for a partner; and,upon the death of a partner, serve as the conservator of the partner’s estate. Pet. App. 49a-50a. California has therefore recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death.
Proposition 8 nevertheless forbids committed same-sex couples from solemnizing their union in marriage, and instead relegates them to a legal status—domestic partnership—distinct from marriage but identical to it in terms of the substantive rights and obligations understate law.
In other words, by passing a domestic partnership law that’s entirely the same as marriage except in name, California’s effectively admitting that there’s no substantive reason to deny gays the right to call themselves “married.” It’s pure discrimination, withholding the label from them just to remind them that they’re different. If the Court buys that logic, then in theory its decision could be limited to California and the three other states (Nevada, Oregon, and Washington) that have similarly broad partnership laws. Every other state with a gay-marriage ban would be safe from their ruling — for the moment. But of course, if the Court rules that way, then they’re creating a perverse incentive from the pro-SSM perspective for other states to strip gays of rights that have already been granted to them legislatively (via domestic partnership, civil unions, etc) so that they can argue in court that gays are “substantively” different under the law and therefore don’t deserve marriage rights. That possibility is why the DOJ spends so much time in the brief arguing against all the traditional justifications for banning SSM; they’re making a robust constitutional case because they want the logic of the Court’s ruling, if not the holding itself, to ensure legalization coast to coast. We’re a long way from summer 2008, if only rhetorically.