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



  1. MickleSt. says

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

  2. bryan says

    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….

  3. Brett says

    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.

  4. bryan says

    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.

  5. bryan says

    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.

  6. Belthazar says


    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.”

  7. Jim Elliott says

    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.

  8. daftpunkydavid says

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

  9. daftpunkydavid says

    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?

  10. Kyle says

    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?

  11. Belthazar says

    @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.

  12. Gerry says

    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…

  13. StillmarriedinCA says

    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???

  14. Lars says

    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/

  15. says

    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.

  16. sugarrhill says

    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.

  17. Francis says

    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.

  18. Oxnard Rick says

    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.

  19. StillmarriedinCA says

    @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?

  20. Patric says

    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.

  21. Kyle says

    Of course the conservatives trolling on here resent this..and want us to distance ourselves from our sense of LGBT community and be constantly questionning the intentions of our allies…it serves the conservative agenda. ALWAYS know, when it comes to the comments section of the internet, that if it smells like a troll …it’s a troll babe.

  22. Scott Johansen says

    @ Duration & Convexity
    I’ve noticed the same thing, and I think you nailed it. So many of the comments on this site don’t pass the sniff test. They seem really calculating and some wreek of conservative sock puppet, especially when they pretend to eb gay, then go blasting our supporters and allies. I think this site kinda jumped the shark. 5 years ago, there were literally a handful of LGBT blogs. Today, there’s a plethora of fantastic ones where you really feel a sense of community with fellow LGBT.
    I agree with you.

  23. Gerry says

    I still stand behind my earlier comment. Olsen & Boies are going for it, business (Oracle, Google, FB, etc) are going for it — for goodness sake, the republicans are going for it. Again, if SCOTUS was really interested in going after a narrow effect they wouldn’t have heard the case. It all boils down to whether or not gay folks are equal. If we are equal it’s across the country – it doesn’t mean sucks to be you if you live in Texas.

  24. Gerry says

    @PATRIC – I completely disagree. Roberts is going to be around for quite a while – everyone acknowledges equality is going to happen. Do you think he will want to reverse his own court? In addition Roberts is very sensitive to his courts place in history. He won’t want to see them being seen as getting this decision wrong. This would also give Kennedy the opportunity to complete a trilogy of gay rights decisions. I think the standing arguments in all of this were put in place as an escape hatch… if something goes amiss, they’ll pull that trigger rather than risk a historical blunder. Will be interested in reading Ari’s analysis, but at the end of the day you don’t have to be a lawyer to figure out the historical implications – that the Roberts court doesn’t want to go down in history as writing another Dred Scott decision.

  25. Randy says

    I’m delighted. I was expecting merely a generic argument for heightened scrutiny, which would have sufficed, but they went right to the merits of the Prop 8 case too.

    On the subject of lesbian and gay equality (as opposed to say, drone attacks) I have been wrong about Obama.

  26. Bill Perdue says

    An unexpected and small step forward and to the side combined with two big steps backwards and a major stumble backwards. The essence of incrementalism – Obots will love it’s little betrayals and faux progressiveness.

    If we win something, however small and incomplete it will be because of the mass activism that began in the aftermath of Obama’s attack on marriage equality in California in 2008.

  27. Chitown Kev says

    @Bill Perdue

    While we will disagree on the extent of Obama’s “attack on marriage equality” in the Prop 8 battle (although, Obama did hurt us), I 100% agree with you that if Prop 8 had died, that the activism that we have seen in the post-Pro8 era would not have happened.

  28. Kyle says

    @LITTLE KIWI–I mean, KYLE. Obama’s amicus brief fell short of those submitted by Apple et al., the Republicans (!), Chris Kluwe and Brendon Ayanbadejo (to name only those posted on Towleroad), which all argued for nationwide same-sex marriage. Where are the conservative trolls criticizing those briefs? Or is it your position that the US Justice Department is beyond criticism? This wasn’t written by Obama, but by his appointees’ appointees.

    You don’t even mention the case at hand whatsoever, you clearly don’t know anything about it, you call fair criticism (like Gerry’s posts) trolling, you post under someone else’s name and you construct this bizarre canard that all critics are conservatives out to Balkanize queer people–that’s trolling, bro.

  29. Patric says

    Gerry, you’re debating with a straw man. I neither said that I expect a negative decision from the Roberts Court nor that it’s certain that Roberts himself will be voting against us. In fact, I think it is more likely that the result of this case will be good news for us than that it will be good news for our opponents and I absolutely accept the possibility that Roberts will break from the conservatives and join a majority opinion or issue a concurring opinion in our favor.

    You assume, however, that the only way in which Roberts can avoid having his Court associated with another Dred Scott decision and the only way for Kennedy to “complete a trilogy of gay rights decisions” is for the two of them to join an opinion mandating that all 50 states recognize marriage equality. For multiple reasons, the most significant of which is the time-honored inclination of judges noted above by others to decide cases on the narrowest grounds possible, I simply do not think that it is likely that the Court will issue a decision, or especially that Roberts or Kennedy would be inclined to join such a decision, saying that Judge Reinhardt of the 9th Circuit below, widely regarded as one of the most liberal judges on the federal Appeals Courts, just didn’t go far enough or issue a decision which does more than is necessary to address the injury to the particular plaintiffs in this case. Having said that, any decision on the merits which is favorable to us, no matter how incremental, is likely to provide powerful momentum to subsequent efforts to extend marriage rights to those in other States.

    Additionally, you express that “if SCOTUS was really interested in going after a narrow effect they wouldn’t have heard the case”, but that presumes that you know which Justices voted to grant cert. It is entirely possible that Kennedy did not vote to grant cert and that he would have been perfectly content with the Court denying cert, with the effect of Prop 8 being struck down, and that he will now be equally content with contributing to the demise of Prop 8 by some similarly narrow means. It is also possible that it was the Court’s conservative Justices who voted to grant cert, in a gamble that this might be their last decent chance to get a decision on record hostile to marriage equality if they can just get Kennedy to join them and that, if they see that they are unlikely to bring him over to their side on the merits, their escape hatch will be persuading him to join an opinion dismissing the appeal for lack of standing (not a great result for them but better than an adverse result on the merits). Anyway, the point is that we don’t know which Justices voted to grant cert, so any speculation that their motivations in doing so was to issue a sweeping decision in favor of equality is not well-founded.

  30. Gerry says

    Patric, you hit the nail on the head, but you too are debating with a straw man. No one really knows the what and why – we are all giving our opinion here. You disagree with mine and I disagree with yours. I don’t think speculation that their motivations in either issuing a sweeping decision against marriage equality or an incremental decision are well-founded. I also think it is a canard to say that the courts rule on “the narrowest grounds possible”. One of the more recent examples was Citizens United – and that was written by Kennedy. The fact is that they will do what they want and write the justification to support it. We can agree to disagree,