As expected, the Obama administration has filed a brief in the Prop 8 case before the Supreme Court. Lyle Denniston has a report on the brief, including the fact that Obama himself played a direct role in the position the DOJ took in the case. That position is a very cautious, moderate one that falls short of endorsing full marriage equality as a fundamental right.
The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.
Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.
In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.“The Court can resolve this case,” the new brief said, “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.” That final phrase was the brief’s strongest indication that the administration is not yet ready to take a firm position on whether the “fundamental right to marry” that the Court has recognized repeatedly is a right that should be open also to same-sex couples.
The eight states that apparently would be covered by the argument the Solicitor General has now made are California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
This is a very interesting position. And as a matter of strategy, it may not be a bad idea. I’ve already written that many of the other briefs have argued for an all or nothing conclusion, either full marriage equality nationwide or nothing, which is a risky thing to do. Justice Kennedy, who will certainly be the swing vote, may just not be ready to go that far but he may be willing to take a halfway position. I can’t recall a more complex and fascinating set of cases, both substantively and strategically.