Obama Administration Files SCOTUS Brief in Prop 8 Case: READ IT

The Obama administration filed a brief on Thursday in the federal case challenging Proposition 8 urging the Supreme Court to rule that same-sex marriage should be legal in eight more states.

ObamaSCOTUSblog writes:

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 eight states that apparently would be covered by such a decision are: California (whose Proposition 8, which denies marriage to couples who already have all of the other marital benefits, would fall), Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

Read SCOTUSblog's full post HERE.

UPDATE: Attorney General Eric Holder released a statement about the filing:

“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.” 

Adam Umhoefer, executive director of the American Foundation for Equal Rights (AFER), the sole sponsor of the Perry case, issued the following statement:

“The brief filed by the Solicitor General is a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded.  It is an unprecedented call to action by our Government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law.  AFER looks forward to having Solicitor General Verrilli and the Federal Government by our side as we make the case for marriage equality for all before the Supreme Court.”

Read the brief below:


12-144tsacUnitedStates by towleroad


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  1. When is Obie going to do something about ENDA?

    Posted by: rise | Feb 28, 2013 6:41:31 PM

  2. @Rise - Stop being so greedy and just rejoice at this historic moment with us.

    Posted by: Brett | Feb 28, 2013 6:46:42 PM

  3. With so many conservatives joining in, do we see a potential return to planet Earth for the Republican party?

    Posted by: MickleSt. | Feb 28, 2013 6:48:46 PM

  4. Hate to say it, but this is not at all helpful. He should have just stayed out of it. The Administration's position presupposes there is no Constitutional right to marriage equality. With friends like these....

    Posted by: bryan | Feb 28, 2013 6:49:29 PM

  5. BRYAN,

    There [is no] Federal constitutional right to marriage!

    Read the document, again!

    Posted by: BRAINS | Feb 28, 2013 6:54:46 PM

  6. That is not what it says at all Bryan. It leaves the door open to the idea that it applies everywhere (and strongly hints that it is). But it is simply saying the court should decide the case on the narrowest grounds available to it, as courts should. No need to make the broader argument - --- but the brief did not argue what you say.

    Posted by: Brett | Feb 28, 2013 6:59:58 PM

  7. I based my comment on the summary, not the brief but the brief does contain the following statement:

    "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 rela-tionships, rather than addressing the equal protectionissue under circumstances not present here"

    A broader view is that gay marriage bans violate the EP clause -- a position taken by AFER and other equality proponents but apparently not by the Administration. And yes, Loving and other SC precedent establish that marriage is a federal Constitutional right.

    Posted by: bryan | Feb 28, 2013 7:05:56 PM

  8. Eight-state solution? That's a half-a$$ed solution. WTF?

    Posted by: WTF | Feb 28, 2013 7:15:00 PM

  9. Brett, like I said , I based my initial comment on the summary of the "8 state" argument above. The Ninth Circuit's decision was narrowly tailored to California where marriage was legal for a time -- something that is not true for these 8 states. I see nothing to distinguish these 8 states from the other states with gay marriage bans other than so-called "states rights" -- i.e., states can decide but if they choose civil unions, EP requires and full marriage equality. This position presupposes that there is no federal Const. right to marriage equality as both civil unions and bans equally would be unconstitutional.

    Posted by: bryan | Feb 28, 2013 7:16:39 PM


    It is saying the the issue can be resolved under California Law which does not mean that it would survived an EP test (circumstances not present here).

    Further, "Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike."

    Posted by: Belthazar | Feb 28, 2013 7:33:40 PM

  11. I think this is a brilliant move on the part of the President. If SCOTUS agrees, over 37% of the US population will have equal marriage (if Colorado votes for civil unions that bring it to almost 40%). Remember that SCOTUS in Loving said laws banning interracial marriage were unconstitutional when a much smaller percentage of the US population had that right. If SCOTUS agrees with the President, I think we will see full national equal marriage with a few years at most.

    Posted by: Jim Elliott | Feb 28, 2013 7:37:07 PM

  12. i hear you, bryan, but you should really read the briefs before making broad pronouncements... just saying...

    Posted by: daftpunkydavid | Feb 28, 2013 7:39:58 PM

  13. re: Remember that SCOTUS in Loving said laws banning interracial marriage were unconstitutional when a much smaller percentage of the US population had that right.

    i don't think that's true... maybe you meant public opinion was more against it than it is today against marriage for gay folks?

    Posted by: daftpunkydavid | Feb 28, 2013 7:50:03 PM

  14. I have to wonder if there isn't some discord within the Justice Department on this issue. This is a pretty weak position. It bypasses many of the arguments against Proposition 8 particularly and gay marriage bans generally.

    Wouldn't applying heightened scrutiny in the DOMA case require a stronger ruling against Prop 8? Are the Administration's two briefs even compatible?

    Posted by: Kyle | Feb 28, 2013 7:51:04 PM

  15. @Kyle, the brief states, Prop 8 fails heightened scrutiny.

    @Jim, I agree. Further, while I believe marriage (defining) is a State’s Right issue, the State cannot violate the EP clause (14th amendment) in that definition. I believe it would unconstitutional for States to refuse same-sex couples the right to marry.

    From there, you get into the Full Faith & Credit Clause (recognition in other states) – EP also gets you past a State’s public policy argument.

    Posted by: Belthazar | Feb 28, 2013 7:58:08 PM

  16. I get it that half-a-loaf is better than nothing, but I'm greatly disappointed that Obama just didn't go for it. IMO if SCOTUS was interested in doing something incremental or limited, they just would have declined to hear the appeal and let the 9th circuit ruling go into affect. Seems to me that a state by state approach causes an unnecessary amount of drama... what happens if someone in California moves to Indiana... all of a sudden they are no longer married? Then what happens if they then move to New York, they are magically remarried?

    I can understand why the 9th Circuit took this approach... they were issuing a ruling and were concerned about SCOTUS. POTUS is filing an amicus brief... after his SOTU speech, I think this brief falls a bit flat. You either believe in equality or not...it shouldn't matter in which state you live. That's the point of bringing a Federal lawsuit.

    I hate to say it but Obama always chokes when he should just stick to his principles and do the right thing. How much you want to bet he caves on his campaign promise not to cut Social Security and Medicare... ugh...

    Posted by: Gerry | Feb 28, 2013 8:30:46 PM

  17. Missive to hell.

    Posted by: Jake | Feb 28, 2013 8:33:19 PM

  18. Gerry is right. The definition of equality should not vary state to state. And particularly for marriage. How absurd if only one part of DOMA is struck down. So my State and my Federal government say that I am legally married. But if I stand on the state line between California and Arizona my right foot is married but my left foot is not???

    Posted by: StillmarriedinCA | Feb 28, 2013 8:57:32 PM

  19. I totally get why this brief would be unsatisfactory to some here. But the Administration is making a wise legal move that has merits. They are carefully tailoring their arguments based on the current makeup of the court, and that court's precedent. Whether we like it or not, this case does not exist in a vacuum.

    Although, as Kenji Yoshino noted, the approach they have chosen could have potentially perverse results in states that would otherwise consider civil unions (e.g. Colorado): http://www.scotusblog.com/2012/12/commentary-on-marriage-grants-different-ways-of-splitting-the-difference-the-menu-of-options-in-hollingsworth-v-perry/

    Posted by: Lars | Feb 28, 2013 8:58:15 PM

  20. The definition of equality shouldn't vary from state to state, and if Section 3 of DOMA and Prop 8 are struck down, the absurdity of the patchwork will become all the more obvious--and in need of rectifying. A smart incremental approach is better than a broad ruling against us. And it's likely to be a huge leap forward.

    I don't think Obama "choked". It was a carefully considered brief, one deliberately tailored to the case and this Supreme Court, as Lars points out. And the DOMA case only involves Section 3 (again, for a reason), so that's what the DOMA briefs have addressed. The idea that this was "better than nothing" or "not at all helpful" just seems absurd. Both briefs from the Obama administration--and from countless other people--have sent a very strong message to the Supreme Court.

    Posted by: Ernie | Feb 28, 2013 9:15:06 PM

  21. This thread jsut proves that trolls on this site will never be happy with ANYTHING thr Obama administration does to advance marriage equality. The briefs filed by the White House are specifically tailored to whatever the case before the Supreme Court is ruling on. If you don't know what you're posting about ask questions don't pontificate. It jsut makes you look stupid and bitter.

    Posted by: sugarrhill | Feb 28, 2013 9:25:34 PM

  22. The truth of the matter is, some people just like to blame Obama for things and don't consider him a true ally. It is what it is.

    Posted by: Francis | Feb 28, 2013 9:26:25 PM

  23. I can't say this without sounding like a jerk, so here goes. There is no way that you can understand all of the implications of the administration's (and others') legal strategy(ies) without going to law school. If you don't believe me, try it for 3 years and then get back to me. Otherwise it is a good idea to rely on the analysis of trusted experts for interpretation. For example, read the New York Times tomorrow morning.

    Posted by: Oxnard Rick | Feb 28, 2013 9:54:43 PM

  24. @Francis-I do consider him an ally and I love him. I am just confused when someone says that fairness and equality are every American's right but then is willing to allow some states to refuse that equality and fairness to some of its citizens. Why did we fight the Civil War if we can let every state decide who is worthy of equal treatment and who is not?

    Posted by: StillmarriedinCA | Feb 28, 2013 9:56:02 PM

  25. Well said, Sugarhill and Oxnard Rick.

    There is virtually no chance that the Supreme Court would use this case to issue a ruling requiring marriage equality in all 50 states and there is virtually nothing that the President's Justice Dept. could say in a brief that would make that virtually impossible event more possible, so any frustration that somehow this move made the best possible outcome here less possible is grounded in fantasy. The most likely good outcomes in this case involve marriage returning to California only but through a decision which either does nothing to impede the progress we've seen in the last 15 years in the Court's analysis of the equal protection clause (because based on standing) or which actually furthers that progress in an incremental manner. If the President weighing in on this case can have any influence on where this Court is headed - and it's by no means clear that it can, the filing of this brief and the argument made in this brief could only help us.

    Posted by: Patric | Feb 28, 2013 10:57:50 PM

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