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. 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.

    Posted by: Kyle | Feb 28, 2013 11:16:31 PM

  2. @ 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.

    Posted by: Scott Johansen | Feb 28, 2013 11:25:01 PM

  3. kiss of death

    Posted by: unokhan | Mar 1, 2013 12:28:56 AM

  4. 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.

    Posted by: Gerry | Mar 1, 2013 12:31:24 AM

  5. @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.

    Posted by: Gerry | Mar 1, 2013 12:50:14 AM

  6. Gerry is absolutely right.

    Posted by: StillmarriedinCA | Mar 1, 2013 1:48:38 AM

  7. 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.

    Posted by: Randy | Mar 1, 2013 3:14:20 AM

  8. 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.

    Posted by: Bill Perdue | Mar 1, 2013 3:34:06 AM

  9. @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.

    Posted by: Chitown Kev | Mar 1, 2013 10:42:41 AM

  10. @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.

    Posted by: Kyle | Mar 1, 2013 11:03:47 AM

  11. 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.

    Posted by: Patric | Mar 1, 2013 12:36:31 PM

  12. 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,

    Posted by: Gerry | Mar 1, 2013 1:19:28 PM

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