Obama Administration Files Brief Urging Supreme Court to Reject Prop 8

Attorney General Eric Holder issued a statement as the Obama administration filed an amicus brief in Hollingsworth vs. Perry, otherwise known as the Prop 8 case that will come before the Supreme Court for oral argument on March 26.

Holder said in a statement, "In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law.  Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole."

The administration argues that laws that discriminate against gays and lesbians should be subject to "heightened scrutiny" by the court, meaning that there should be a "significant and proper purpose" in advancing such measures. The brief says that the "use of a voter initiative to promote democratic self governance cannot save a law like Proposition 8 that would otherwise violate equal protection. The point of heightened scrutiny is to protect disfavored minority groups from unjustified targeting in the democratic process."

The brief takes on the arguments for Prop 8, like promoting child rearing and that it is the will of the people.

"California's extension of all of the substantice rights and responsilibities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8's withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing --- petitioners' central claimed justification for the initiative --- but instead on impermissible prejudice. ... Prejudice may not, however, be the basis for differential treatment under the law."

The complete brief is here.

Chad Griffin, president of the Human Rights Campaign, said in a statement, "President Obama and the Solicitor General have taken another historic step forward consistent with the great civil rights battles of our nation’s history. The President has turned the inspirational words of his second inaugural address into concrete action by urging our nation's highest court to put an end to discrimination against loving, committed gay and lesbian couples and their families."

The administration's decision to file a brief alters President Obama's previously supported position on same-sex marriage, which is that be backed gay nuptials but that it was a matter that should be left to the states. By filing a brief that says that state bans on same-sex marriage should be subject to "heightened scrutiny," the administration is saying that such laws cannot stand because of the equal protection clause of the constitution. What's striking about the brief is that it is so straight-forward, at a relatively short 40 pages.

Update: Richard Socarides, writing in the New Yorker, says that Obama's position is essentially a broad support for same-sex marriage rights, as the rationale in the brief would essentially render unconstitutional bans on same-sex marriage across the country.

He writes that "the Administration goes on to say that any legislative classifications based upon sexual orientation—like laws that limit marriage to heterosexuals—in order to be justified constitutionally, should be subject to a standard of review known as 'heightened scrutiny.' The implications of this argument are extremely broad.

"Under heightened scrutiny, laws that hinge on sexual orientation are only constitutional if they are needed to advance a compelling or important government interest. Uniformly, in the gay-marriage cases, the only justifications put forth by opponents of marriage equality are those based on tradition, custom, or prejudice. Because those reasons are not 'compelling,' the gay-marriage bans cannot survive the test. The government has advanced a similar argument in the Defense of Marriage Act cases—which involve not the right to marry but the federal recognition of otherwise valid marriages—but never in a pure marriage case."