After President Obama’s extraordinary Inaugural speech underscoring equality as a core principle of American democracy, many LGBT politicos have started pressuring Obama to put action behind those words and file an amicus brief In the Prop. 8 case before the Supreme Court hears oral arguments on March 26. On Sunday, the New York Times chimed in, as well:
Now that Mr. Obama has declared that he believes denying gay people the right to wed is not only unfair and morally wrong but also legally unsupportable, the urgent question is how he will translate his words into action. To start, he should have his solicitor general file a brief in the Proposition 8 case being argued before the Supreme Court in March, saying that California’s voter-approved ban on same-sex marriage is unconstitutional. ...
Marriage is traditionally regulated by the states, but there are constitutional limits on what states may do. The Supreme Court’s 1967 ruling in Loving v. Virginia prevented states from forbidding marriages between interracial couples like Mr. Obama’s own parents.
Furthermore, the day after the Proposition 8 case is argued, the Justice Department will be asking the Supreme Court to invalidate the Defense of Marriage Act, the atrocious 1996 statute that denies federal benefits to lawfully married same-sex couples. The government will be arguing that discrimination against gay people, a vulnerable minority group, is presumptively unconstitutional. It is hard to see how the marriage act’s discrimination is presumptively invalid but not California’s wiping out of existing marriage rights for gay people that were mandated by the state’s top court.
The outcome of the Proposition 8 case is likely to affect the lives of gay, lesbian and bisexual Americans for years to come, even if the final disposition is not sweeping enough to wipe out all state laws currently banning same-sex marriage. A strong filing by the Justice Department, forthrightly declaring that denying the freedom to marry violates the Constitution, would put the full weight of the federal government on the side of justice and could influence the shape of the ruling.
For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land—impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.
Mr. Obama’s Inaugural Address appeared to reflect a deepened understanding that the right to marry the person of one’s choice is a fundamental right “under the law.” He needs to make sure his solicitor general conveys that sound legal view loud and clear in the Proposition 8 case.
SCOTUS will hear arguments on DOMA—the so-called defense of Marriage Act—the next day, on March 27. The Courage Campaign’s terrific blog Equality on Trial (formerly Prop. 8 Trial Tracker) has more on the weird and wrong arguments filed by opponents of marriage equality. But with news that Speaker Boehner has allocated $3 million to defend DOMA, the Center for American Progress created this infographic to break down where that money could be otherwise spent: