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.


  1. Bingo says

    Of course SCOTUS “need not” stop at 8 states. But giving them the option to do so allows them and the country breathing room until the next case that makes them take the logic one step further.

    This brief is about helping the court see a way to do the right thing even as it hesitates to the honest-to-God complete right thing.

  2. simplet0n says

    Outstanding commentary, as usual, to my most favorite towleroad contributor. thanks giving an objective discourse on the issue.

  3. Fodolodo says

    This argument is strange. The brief does not suggest that same-sex marriage bans in any state would satisfy heightened scrutiny. Nor does it argue that Prop. 8, or bans in the other seven states with comprehensive relationship recognition, would satisfy rational basis view. (It may be, however, that DOJ thinks they would, or that it would be a much closer question on rational basis. That view may or may not be right, but I don’t think it is “confusing or illogical.”)

    What is happening here is entirely straightforward, and to me seems completely unproblematic. The Obama Administration has long taken the view that heightened scrutiny is the appropriate standard for classifications that distinguish based on sexual orientation. What the brief is doing is simply applying that standard to the specific legal question before the Court, which is about the constitutionality of Prop. 8 specifically, in the context of California’s conferral of comprehensive relationship recognition of same-sex couples through a separate institution. I agree that most of the brief’s argument would apply equally well to other same-sex marriage bans, and Obama said more or less that himself last Friday. But the brief doesn’t have to answer that question, because the case is about Prop. 8, not (directly) about the constitutionality of same-sex marriage bans in the general case.

  4. Antonin says

    This also provides Scalia an outlet for lambasting the amicus brief (and the President) for this failure in logic. Don’t think he’ll miss that opportunity, whether writing a concurrence or a dissent.

  5. Jorge says

    There is another key reason for going only the way of the 8 state solution, and that is to keep his argument consistent with the underlying theme of the brief in Windsor.

    Hidden in plain view in Windsor is a notion that the federal government ought not to say what the marriage laws of states are, but should treat them all equally.

    He can’t come up the next day and then say, as the federal government, the federal Supreme Court should dictate the marriage laws of all 50 states. That would open Verilli up to the cheapest of shots from the Justices.

    The administration, unlike other litigants before the Court, and in particular the SG’s office, has a reputational interest before the Court.

    The 8 state solution is the best way to adopt a strong stance against anti-gay marriage laws without eroding the force of the entire argument in Windsor.

    Once that is properly understood, the “inconsistency” constructed in this post becomes mostly irrelevant and besides the point.

  6. ECC says

    I think this is right as legal analysis but my conclusion differs a bit. I expect the Court will agree with the inevitable conclusion that heightened scrutiny is a death knell for all discriminatory marriage laws (the “41 state solution,” or “actual equality” solution). But I think that is too big of a step for Kennedy (at least). That could easily motivate Kennedy to take a “judicial modesty” tack: “It is only necessary for the purposes of our decision today, to address the factual circumstances presented to us in the context of California’s Prop 8…. and leave for another day the larger issue…” The silver lining (other than a win for Californians) is that it might lure Roberts if it is modest enough….

  7. Glenn says

    You make clear the politics behind the Administration’s argument. But look what the 8-state solution says: If you discriminate a lot (no same-sex civil unions or marriage), that passes constitutional muster, and we take no action. But if you discriminate a little (allow same-sex marriage in all but name), we find you in violation of equal protection. I suppose this could stand as a limited decision specific to the case at hand with implications for the 8 states only. But then the contradiction necessitates SCOTUS taking on a future case and finding that discriminating a lot (no same-sex civil unions or marriage) violates equal protection at least as much as discriminating a little.

  8. Zlick says

    Actually, if SCOTUS were to follow where justice properly leads, both the Prop 8 and DOMA cases would be thrown out for the blatant lack of standing of the parties bringing the case. Therefore, even reaching the merits would indicate the Supremes are valuing politics over law – which I find very disconcerting and – despite the better outcome possible – is not at all what I personally want to see from the highest court in the land.

    In that context however, the illogical nature of Obama’s 8-State Solution doesn’t really matter. It’s the most politically viable positive outcome path, and I’d wager it’s the one we’ll get.

    Silly as that Solution might be, it’s another stepping stone to national marriage equality. Because, yes, if sexual orientation merits heightened scrutiny, then all marriage bans will eventually fall. And if, at the same time Prop 8 is overturned, DOMA is also banished – I’m pretty sure we’ll have de facto national marriage equality anyway.

  9. Ben in Oakland says

    Those arguments are great, and probably true. But UI think they are included in a much simpler proposition.

    Mr. Obama is a master politician. That’s why he’s president, and will be a force in liberal politics for quite a while.

    This is simply a case of bargaining, and nothing more. Tossing anti marriage laws nationwide and instituting marriage equality was never in the offing for this case from this supreme court. I would be amazed if that happened. The eight state solution is a step down from that. That’s the “price” obama is asking for marriage equality.

    But he’s willing to accept the actual price. Tossing Prop. 8.

    A slow, measured, entirely legal way of getting the job done and preventing much of a backlash. Personally, I think it’s the way to go. we don’t get what we want immediately, but we do get it on a much more solidly grounded basis.

  10. Anthony says

    Well, I live in California, and hopefully Prop 8 and DOMA will be gone by July 4th, so I will officially be an equal citizen! Which also means I will never leave this state :)

  11. Anthony says

    Also, if DOMA is struck down, would gay couples in places like Texas be eligible for federal benefits, but not state?

  12. Gerry says

    Thanks for the great post Ari. I completely agree, it makes no sense… and I called it the: “Sucks to be you if you live in Texas” decision. Clearly equal is equal and it doesn’t matter where you live. I’m sticking by my prediction that SCOTUS is going to go for a historic civil rights decision and make marriage equality a reality for the entire nation. What I really am curious about is what Scalia, Thomas and Alito are going to do… If they come out against marriage equality they’ll probably be twisting themselves into a legal pretzel justifying it. Like I said, who wants to be associated with another Dred Scott decision and go down in history as the justice who blocked equality. We’ll see….

  13. Ant says

    It is practical to assess and understand situation and surrounding.
    Logically, if the river is too big to jump over, then the surer way to cross the river is with a stepping stone. Throw a big stable rock in middle and make 2 jumps, instead of a single risky dangerous leap and fall into the river.

  14. says

    You pretty much hit the nail in the head. But certain people are more interested in the political demagogy use of the brief than the content of said brief which introduces this warped loony theory and its unintended consequences that might occur if such arguments were to actually prevail.

  15. Antonin says

    @Anthony – it depends on how SCOTUS decides Windsor. Not necessarily. And I think unlikely since to get to a majority, I can’t see them resolving the equal protection issue so broadly as to require states that do not currently allow gay couples to marry to force them to (a la Loving v. Virginia). They may go so far as to say, New York has recognized gay couples as married and the feds must as well. I just don’t know how you do that and ignore the next obvious question – how is it not a violation of equal protection to treat couples in New York differently than those in Texas? Perhaps it would allow gay couples in TExas to get married in New York and have access to federal benefits, but somehow let Texas still ignore them. I just don’t see how you resolve this without resolving one way or the ohter the issue of whether there is a fundamental right to marriage. And I am just not yet convinced the majority of the Court is there. I think if you limit this to a state right issue – observing what New York accepts as a marriage – would get more support on the Court than a broad fundamental right finding.

  16. MiddleoftheRoader says

    Kudos to almost all the commenters so far for understanding that every Supreme Court case, including this one, is a balance of logic vs. politics vs. realism.

    The Supreme Court has a few basic principles for every case, and one principle is: don’t decide something that you don’t need to decide in order to reach the result that you want to reach. To put it another way, if the Court can write a narrow opinion or a broad opinion, almost always it will write a narrow opinion to deal SOLELY with the case before it.

    So, if the Supreme Court strikes down Prop 8, either under a strict scrutiny test OR a rational basis test, then its decision will automatically affect several states: CA, IL, DE, HI, NV, NJ, OR & RI. That will bring a huge % of the US population living in states with same-sex “marriage”. But its decision, if it’s a narrow one, won’t automatically affect other states. Yes, unfair to same-sex couples in other states like Alabama, Mississippi, Ohio, Michigan etc — but a huge step in the right direction.

    Also, although no one knows for certain what Chief Justice Roberts or Justice Kennedy will do, one thing is obvious: it’s going to be much easier for one (or both) of them to reach a favorable result that applies to 8 states, rather than 50. And they can do it on the “rational basis” test that Justice Kennedy used in Lawrence v. Texas (if they don’t use the “strict scrutiny” test).

    Finally, as one commenter said, it’s a bit hard to tell Chief Justice Roberts and Justice Kennedy in the Windsor case that states should have broad latitude to define marriage, and then tell them in the Prop 8 case that no states can prohibit same-sex marriages. Yes, that was the result in Loving v. Virginia, and it’s the right result here; but are Roberts and Kennedy really ready to make that leap with same-sex marriage? And should they be forced to reach that broad question if they can decide this case on more narrow grounds?

    The bottom line: we need 1 more vote (from Roberts or Kennedy) and we need to maximize the chances of getting it. Obama’s brief is a masterful political, and yet intellectually appropriate, way to go down this road one step at a time. It’s “intellectually appropriate” because it does what almost every Supreme Court Justice usually prefers: a narrow ground to reach a decision.

  17. Michaelandfred says

    Maybe Ari can explain, but would a challenge in federal court of any of the constitutional bans on same sex marriages hold up under heightened scrutiny? Wouldn’t that just set the court up for the same lawsuit a couple years down the road?

  18. Bob says

    Obama is trying to lead the horse to water, knowing that telling it that it must drink would not work,

  19. Craig Nelson says

    Put simply any positive ruling striking down DOMA and Prop 8 (the latter in either 1 or 8 states) along with some heightened scrutiny in itself has a number of momentous effects.

    For one thing it would mean that there would be two more rulings in addition to Baker v Nelson (along with, potentially, an affirmation of the Ninth Circuit’s interpretation of Romer).

    For another it would be an affirmation – on however narrow grounds – of each and every court in Prop 8 and DOMA that ruled in favour of striking down discrimination – arguing that lower courts stand a good chance of not being overturned when challenging antigay discrimination (and not just in marriage cases bit others as well) and – if successful – SCOTUS doesn’t need to take each case which can rest at the circuit level, unless an inconsistency develops in which case a further SCOTUS ruling might be necessary. Without inconsistency (between circuit courts) it may be that the whole issue can be wrapped up in a few years in between lower courts and state legislatures rather than in the pens of 9 Supreme Justices. These would be powerful precedents according to which future cases would be determined.

  20. Abel says

    Thanks for this, Mr. Waldman. Excellent and enlightening as always. I’m not optimistic about SCOTUS, but we’ll have to wait and see. Scalia is going to do his Rumpelstiltskin act, (hopefully with the same results. He would not be missed.) (Okay, for those who don’t remember, Rumpelstiltskin screams and stamps his foot so hard the ground opens up and swallows him).

  21. Marco Luxe says

    IMHO, SCOTUS will sadly punt due to a failure of standing in both cases. Why else would they commission an independent standing brief with oral argument in Windsor? Politically, this would be a win for the President with Independents giving seats to Democrats in 2014. BLAG is a joke, and has no hope of gaining standing. Even if it does stand for the House [unlikely], it does not represent Congress. “Yes on 8″ will also be found to lack standing because they themselves declared at trial that there is not even theoretical harm to sharing the word marriage, thus no controversy as required by Art III. Lower courts’ rulings will stand, bringing marriage to CA [only] and federal recognition of “married” couples. The 8 state solution will happen within each state in the next 8 years. The majority of the US population will then live in equality states and only then will SCOTUS discover its shriveled cojones to broadly rule.

  22. @Marco says

    I do believe they will deny standing on Prop 8, but in the DOMA case, the U.S. still has standing, so they will strike it down there.

  23. EdA says

    I’m not a lawyer, but it seems to me that the stated rationale for the US government to file any brief on Proposition 8 is its connection to Windsor (and presumably other DOMA cases, which are not before the Supreme Court). Moving beyond California and other similarly situated states could be perceived as an excessive and unjustifiable stretch, especially by the sociopathic members of the Supreme Court who are personally aware of their own excessive and unjustifiable stretching of cases and the letter of the law, both.