Obama Files Brief Asking Court to Overturn Proposition 8

Think back ten months ago to when President Obama announced that his position on gay marriage had “evolved.”

What his position had in fact evolved from was his prior position when he promised the American people that he was against gay marriage. That was in 2008 when he was working to get elected president. Ten months ago, he announced that his thinking had evolved past his earlier promise and he was now in favor of gay marriage.

At that distant, and now forgotten time of ten long months ago, he promised the American people that his newly-evolved support for gay marriage was just his “personal opinion” and that it would have no effect on the actual laws concerning marriage. After all, the laws in question were not federal laws, and as President of the United States he had no power to or intention of trying to influence state legislatures.

That, as they say, was then. This is now. And right now it appears that our president has every intention of using the force of his office in whatever way he can to push gay marriage on the country. The fiscal cliff/sequester fight may have robbed him of the economic wherewithal to use his powers as Commander in Chief to send aircraft carriers to the Persian Gulf, but evidently there is still plenty of money to buy ink for his office printers.

Yesterday, the president filed yet another of his briefs suggesting to the Supreme Court how they should rule on the question of gay marriage. In this particular brief, he asked them to overturn a vote of the people in California. I realize that President Obama is not one to care about things like consistency in his actions, but I still think it’s interesting that a man whose power of office comes entirely from a vote of the people would be so flip about overturning other votes of the people.

The people spoke in California. But evidently, the president’s opinion on votes of the people is evolving right along with just about everything else he tells us he believes. So far as I can tell, the only promises this president can be trusted to keep are the ones he made to Planned Parenthood and the abortion on demand crowd. For them, he will do anything.

You can find the full text of the brief here.

A New Yorker article describing the brief says in part:

Thursday night, just hours before a filing deadline, President Obama’s Justice Department submitted an amicus curiae brief asking the Supreme Court to strike down Proposition 8—California’s gay-marriage ban. Even more importantly, it did so by asserting a bold claim to full equality for gay and lesbian Americans, which is a significant development in the nation’s rapidly moving consideration of the issue.

The brief—which President Obama, according to a report on SCOTUSblog, personally helped craft—did not directly ask the Supreme Court to declare marriage equality a constitutional right. Even so, its legal reasoning points squarely in that direction. If the Court accepts the full weight and reasoning of the President’s arguments, any state constitutional amendment banning same-sex marriage would fail the test of constitutionality. Twenty-nine states, in addition to California, have such amendments now.

Theodore Boutrous, one of the lead attorneys in the small group of legal heavyweights representing the Proposition 8 plaintiffs (a team including David Boies and Ted Olson), said on a conference call for reporters which was quickly arranged after the brief was filed, that they were “extremely pleased” that the government had taken a strong stand for marriage. He added, with respect to other anti-gay marriage bans, “I don’t see any way these laws could survive” under the legal test urged by the Justice Department in its brief.

It would have been close to impossible to imagine these developments less than a year ago.

Read more: http://www.newyorker.com/online/blogs/newsdesk/2013/03/socarides-on-prop-8.html#ixzz2MJ1WdW7a

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  • Bill S

    I have maintained all along that no one’s constitutional right requires public acceptance. Either it is a right or it isn’t. If it is then it is not a matter for the voters or their representatives in the state legislature.

    If it is not a right, it could still be granted as a privilege. But that would be a decision made by the states. In my state, gays are free to marry and I am proud of that.

    • Mike

      Gays have ALWAYS been “free to marry”. Thousands and thousands and thousand of gay men and women have been married in Texas, in Oklahoma, in Italy, in Austria and everywhere else on earth. They gay men just married women and the women men.

    • http://coalitionforclarity.blogspot.com/ Robert King

      If it is a human right, a natural right – such as self-defense, or productive work, or authority over one’s children – then the job of the legislature, the executive, and the courts is to recognize and protect that right. It does not depend on popular sentiment or on votes of the people – or even on acts of the government, even on the Constitution. It is, in the words of Jefferson, inalienable.

      If it is a civil right – such as voting or military service or representation by a lawyer – these can be created, changed, and abrogated by the legislature, enforced by the executive, and adjudicated by the courts. But these rights should always be at the service of each person’s natural rights and responsibilities. The job of the government is to protect and promote justice, which again is independent of popular sentiment. Hence, the longstanding Western tradition of philosophy declares that “an unjust law is no law at all,” and that there is no obligation to obey it.

      The big question is whether same-sex marriage is a natural right that is unjustly denied by current law; a civil right (founded perhaps on the 14th Amendment) that is unjustly denied by some current laws; or an attempt to change the definition of marriage in an unnatural – and therefore unjust – way, to the detriment of all involved.

      The only arguments I have heard in favor of same-sex marriage are either red herrings (claiming lack of legal protections where those legal protections are available through other means), or appeals to emotion (“we want our special day just like everyone else!”). Meanwhile, the arguments against are based on biology, anthropology, history, and only occasionally on religious teaching. Yet the arguments against are dismissed as bigoted and irrational, while the argument for is taken to be self-evident truth.

      If there are serious arguments about the nature of the “right” to same-sex marriage, I very much want to see them. I want to consider them. I want to understand them, and see whether I’m missing something in my own analysis. But to this point, I have found nobody willing or able to present such an argument.

      • http://ashesfromburntroses.blogspot.com/ Manny

        Very good Robert. The world has turned upside down, inside out.

    • Theodore Seeber

      A right has to first be right- and the way they’ve gone about this one, I can only describe it as a wrong.

  • Bill S

    That’s no fun.

    • Mike

      One reason why I don’t think there’s a const. right to re-define marriage is that I don’t think marriage itself is a const. right. It is a privelege which states do not have to recognize legally; It is their prerogative.

  • abb3w

    Yes, the people spoke in California; however, they have also said (by ratification of the federal Constitution, with Article VI and Article III Section 2) that the Supreme Court gets to decide whether what they said as a single state is allowed to stand. A bit of searching even turns up an example from Oklahoma’s own history: Guinn and Beal v US, which invalidated part of the Oklahoma constitution back around 1915. (Also a civil rights case, that.)

    In addition, I’ve mentioned previously the polling data that leads me to expect that a repeal would pass in California, if put to a vote today for them to speak again to the question. I can understand why those in California prefer seeking redress in the courts rather than awaiting redress at the polls. Personally, I’d prefer the Proposition 8 issue be resolved by another referendum — thus sending a signal more difficult to ignore than a court ruling.

    • Rebecca Hamilton

      I don’t have time to deal with this right now. Let’s see if someone else can take it. I will say that while I know that polling data has changed since Prop 8, I also know that you don’t change the outcomes of elections on polling data. If we did that, just about every president (including the current one) would have been removed from office at some point during their terms.

      Now, let’s see if the other Public Catholicers can answer this rather banal reference to an earlier Supreme Court case as a justification for gay marriage. Hint: It’s been raised over and again by advocates for gay marriage.

  • Oregon Catholic

    Marriage should be about a man and a woman joining together to make offspring and raise up the next generation. We should encourage marriage and stable biological families because it’s good for society.

    No one needs a license to have sex. If you aren’t making babies, you don’t need a license. In fact, licensing sexual relationships is darn close to having the government in your bedroom. If you have to have biological material from a third or fourth party to make a baby, then you don’t have a marriage between two people. You might as well bring back polygamy.

    • Mike

      Be careful your speaking truth to power. Real truths are terrifying. ALL human beings have a basic human right to a mum and dad, ALL.

      • Rebecca Hamilton


    • Bill S

      “Marriage should be about a man and a woman joining together to make offspring and raise up the next generation.”
      OC, you are simply stating a Darwinian instinct for each generation to pass on its genes to the next. We are under no obligation to act out that instinct. If people choose not to pass on their genes, there is no penalty. Therefore, from that perspective, there is nothing wrong with gay marriage and contraception. We are not slaves to natural selection.

      “We should encourage marriage and stable biological families because it’s good for society.”

      Yes, we should. Nothing is stopping us from doing so. Let heterosexuals continue to grow and prosper and let homosexuals live together with one another in marital bliss. They are not hurting anyone. Homophobes that get called to the carpet for discrimination cannot blame gay marriage for it.

      • Theodore Seeber

        They are, by definition, hurting each other.

      • pagansister

        Like your last paragraph, Bill S.

    • pagansister

      OC, marriage is for so much more than just making babies——though I do realize that in the sacrament of marriage in the Church, that is a duty, since it is in the ceremony.

  • http://ashesfromburntroses.blogspot.com/ Manny

    Can we all agree that Obama is a liar and a fraud? He was never against gay marriage. It was a pre-election position just waiting to be contradicted. Evolved my tuchus.

    • pagansister

      “Can we agree that Obama is a liar and a fraud”? Manny. Nope.