The Logical Problem with the ‘8 State Solution’ in President Obama’s Prop 8 Brief

The President's brief has two arguments. First, Prop 8, like the Defense of Marriage Act (DOMA) and any other government action that discriminates on the basis of sexual orientation, should get heightened scrutiny. Heightened scrutiny refers to the burden that proponents of discrimination have to carry in order for their law to pass constitutional muster. Think of it like hurdles on a track: the higher the hurdle, the fewer runners are going to make it over; the higher the scrutiny, the fewer laws are going to make it, as well. Second, Prop 8 fails heightened scrutiny because it denies the word "marriage" while leaving in tact California's progressive and otherwise equal family law regime that grants all possible rights (except "marriage") to gay persons.

This argument sounds good, but it simply doesn't logically follow. To see why, consider the hurdling analogy. Say you're a college track coach and you're running a tryout to pick the five best hurdlers. Fifty people show up to compete. If you keep the hurdles absurdly low, almost every runner will be able to pass the easy test while weeding out only the absolutely unqualified. As you raise the hurdle, more and more of the runners in the lower ranks are going to trip, fall, or fail to clear the bar. The same is true for the level of scrutiny: the higher the level of scrutiny, the more and more discriminatory laws are not going to pass the test.

The President is saying that if we accept heightened scrutiny, California's — and presumably, Delaware's, Hawaii's, Illinois's, Nevada's, New Jersey's, Oregon's, and Rhode Island's — bans on same-sex marriage fail. But, denying the word "marriage" while treating gays and their families equally in every other respect is just the most irrational thing a state can do. For example, you cannot, with a straight face, look a judge in the eye and say, "We don't think gays should marry because opposite-sex couples make the optimal parents," while at the same time allowing those very same gays to be parents! Nor can you rationally argue that bans on gay marriage encourage opposite-sex couples to have unplanned pregnancies within marriage when all you're doing is saying that gays cannot have the word "married" on their civil union certificate.

In other words, marriage discrimination in President Obama's 8 states fail constitutional muster under rational basis review — the lowest hurdle, the easiest one for runners to jump over. His argument for heightened scrutiny, if adopted, would help invalidate many more bans on the freedom to marry, if not all of them. The 8 State Solution, therefore, makes no legal sense.

Why would the President make this confusing and illogical argument and force himself into a strange corner of the 8 State Solution when we all know he believes in a general freedom to marry for gay Americans? There are legal and political reasons.

Eric HolderThe legal reason is consistency. If you recall, when Attorney General Eric Holder wrote his letter to House Republicans telling them that the Obama Administration will no longer defend DOMA, he stated the President's position that anti-gay discrimination merits heightened scrutiny and that DOMA fails under that standard. As Windsor and the other DOMA cases wound their way through the federal district and appellate courts, the Second Circuit and the Northern District of California adopted heightened scrutiny, making it an increasingly viable legal development. Therefore, when the President filed his brief asking the Court to strike down DOMA, he argued for heightened scrutiny. Prop 8, like DOMA, is an example of state anti-gay discrimination, so it gets heightened scrutiny, as well.

Politics probably played a bigger role in the 8 State Solution. The President is a cautious and highly skilled politician keenly aware of the political winds that affect the Supreme Court. He knows that going too far too fast could not only back fire, but also put off some of the more conservative justices on the Supreme Court who may be supportive of a constitutionally-protected freedom to marry. The 8 State Solution gives the Court a way to strike a victory for equality without feeling like Hollingsworth would be imposing the freedom to marry on states not quite ready. By leaving intact a comprehensive regime that recognizes "everything but marriage," the 8 states implicated by the President's brief are, at a minimum, more ready to adapt to a reality with the freedom to marry. The social impact of a pro-gay decision in Hollingsworth would be less drastic in those states, thus reassuring the Court's conservatives or libertarians.

But let's not lose the forest for the trees. The President's brief will be remembered as one of the several milestones we have recently reached in American gay rights history. He is not only the first President to support our quest for marriage freedom while in office, he is at the vanguard of gay civil rights. That his brief's particular legal argument was probably more a product of politics than precise legal reasoning is almost irrelevant given the brief's larger socio-political objective: to push the judiciary and the population in general to see the justice of the freedom to marry.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.