Ari Ezra Waldman | Barack Obama | California | Gay Marriage | Law - Gay, LGBT | News | Proposition 8 | Supreme Court

President Obama Asks Supreme Court to Strike Down Prop 8 And More: An ANALYSIS of the Brief


Obama 2012_DaleTen years ago, the Supreme Court decided Lawrence v. Texas, striking down sodomy criminalization laws. Justice Kennedy's opinion in that case is the most important and sweeping gay rights decision in history; that is, until this June -- almost ten years to the day -- when the Court will decide Hollingsworth v. Perry (the Prop 8 case) and Windsor v. United States (the DOMA case). 

In Lawrence, the most exciting supportive amicus brief filed came from the Cato Institute, which usually supports Republican and conservative policies. Cato's support should not really have been surprising, though, given its libertarian leanings. Hollingsworth has its pro-gay marriage Republicans, more than 100 of whom signed on to their own amicus brief. Then came a sweeping filing from the United States government, the importance of which cannot be overstated. Amicus briefs are sometimes a dime a dozen: lots of individuals and groups file "friend of the court" briefs and, especially if all they do is restate the argument of the main briefs, neither the justices nor their clerks pay much attention to them. But, when the President makes his voice heard, he commands attention. As a co-equal branch of the federal government, the Executive branch's position on any legal issue before the Supreme Court merits consideration as a firm statement of public policy. 

President Obama and his legal team ask the Supreme Court for three things: (1) heightened scrutiny for discrimination on the basis of sexual orientation, (2) a declaration that California's Prop 8 is unconstitutional, and, by implication from that argument, (3) an end to several other states' bans on same-sex marriage. It is the third point that is getting lost in some of the coverage of the Administration's amicus brief and what I would primarily like to talk about today. AFTER THE JUMP, I will summarize the brief's argument, distinguishing it from AFER's brief, and discuss its importance.


The Administration's brief argues two related legal points: That Prop 8, like all other state discrimination on the basis of sexual orientation, deserves heightened scrutiny, and that Prop 8 fails to meet the requirements of the Equal Protection Clause under that standard.

Note two things right off the bat. First, whereas the President's brief argues that Prop 8 violates equal protection, AFER's brief argues that Prop 8 violates the Equal Protection Clause and the Due Process Clause. As will become clear in a moment, this gives the President's brief a significantly narrower reach. Second, the President dismisses the lowest form of scrutiny -- rational basis -- and argues only under a heightened scrutiny standard. Scrutiny levels are akin to the height of a hurdle that you have to jump over during a race: the higher the hurdle, the harder it is for you to win. By focusing only on heightened scrutiny, the President's brief may be implying that the President is taking no position on whether Prop 8 could survive rational basis. By contrast, if you recall Judge Vaughn Walker's original district court decision striking down Prop 8, he held that Prop 8 failed under any level of scrutiny.

The President's heightened scrutiny argument is familiar; it is, in fact, the same argument it submitted in its Windsor brief, calling for the Court to strike down Section 3 of DOMA. Anti-gay discrimination deserves heightened scrutiny, i.e., the higher hurdle to jump, because (1) gays have been discriminated against throughout history, (2) being gay has no bearing on a person's ability to contribute to society, (3) anti-gay discrimination is based on a defining, deeply personal characteristic that defines gay persons as a group (this is sometimes erroneously referred to as the "immutability requirement"), and (4) despite political progress, gays are still a minority group with limited political power.

Delery-thumb-150x150-2336All of that is true and the Obama Administration has been arguing this point with great force ever since Stuart Delery (left), the openly gay Principal Deputy Assistant Attorney General, and his team started arguing against DOMA at the intermediate courts of appeal. You might be worried about the fourth requirement -- sometimes erroneously referred to as the "political powerlessness" requirement -- given that the President is openly on our side. Justices Scalia and Thomas are notorious adherents to the fallacy that a few victories and some progress at the ballot box show that gays are not politically powerless, for example. However, powerlessness is not the shibboleth of this test. As Prop 8, and the multitude of other state bans on the freedom to marry suggest, the gay community cannot hope to realize its constitutional rights with a political strategy alone. That Sean Patrick Maloney just won a seat in Congress or that Tammy Baldwin is our first openly gay senator are red herrings: a gay leader or a gay victory here and there have no effect on the tyranny of the majority.

The Administration's equal protection argument may not be as familiar, though I discussed it on Towleroad more than two years ago. AFER's brief argues that bans on the freedom to marry violate equal protection because, pursuant to Prop 8 and other similar bans, some couples can get married and some cannot and the only reason why some cannot is because the individuals seeking to marry happen to be of the same sex. That argument could apply to any ban on same-sex marriage.

President Obama's argument appears to blend this broad equal protection argument with parts of the Ninth Circuit's decision below. Recall that the Ninth Circuit issued a narrow decision centered on the fact that Prop 8 took away rights previously granted to gay people, much like Colorado did in Romer v. Evans. What Prop 8 did, the Court said, was narrow yet profound: it only took away the word "marriage," but left intact the slew of California laws that allowed gays to adopt, gave them all the state benefits of marriage through domestic partnerships, and so on. Denying gays the social significance of the word "marriage" was particularly irrational because keeping all those other pro-gay California laws made Prop 8 bald discrimination for discrimination's sake.

This is the heart of President Obama's argument. 

He argues that Prop 8 fails heightened scrutiny because none of the justifications offered by proponents, either in their briefs or at any time before, are "substantially related to an important government interest" (the high hurdle). For example, Prop 8 cannot be justified as a way of protecting against opposite-sex couples having "unintended pregnancies" out of wedlock because not allowing gays to marry does not encourage heterosexuals to marry. Nor can it be justified as a way of encouraging the "optimal parenting arrangement" because "California law continues to grant same-sex domestic partners the full extent of parental rights accorded to married couples. In that context, the exclusion of of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and parenting."

Prop8In other words, if all Prop 8 did was deny gay couples the word "marriage," but still allowed them to raise kids, establish families, and enjoy the benefits of marriage, Prop 8 is entirely pointless and certainly not substantially related to the goal of encouraging good parenting.

The central implication of this position is that it stakes out a middle ground between AFER's broad argument that all bans on same-sex marriage violate equal protection and due process and the Ninth Circuit's argument that Prop 8 violates the Constitution because it took away rights previously granted. AFER's argument could apply nationwide -- anywhere couples are denied the right to marry simply because they are gay, their fundamental right to marry is impinged. The Ninth Circuit's argument only applies to California, which first granted then took away marriage rights. 

President Obama takes on eight states -- California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island -- whose policies can be described as "everything but marriage." These states give gay couples all the trappings of marriage, the right to adopt as couples, and all the protections a gay person could want other than the word "marriage." It is for this reason that bans on marriage make no sense in California and, by implication, in these seven other states. This compromise allows the President to make a forceful argument in favor of the freedom to marry, but still leave some wiggle room for the rest of the states.

There is reason to believe that this makes strategic sense.

First, the President knows that Justice Kennedy is the likely swing vote in this case and Justice Kennedy is a cautious, conservative jurist. He has a history of respecting states' rights above all else and often rejects sweeping policies that reek of overreach. Incremental change, if any change at all, seems to be his mantra, as Professor Kenji Yoshino has argued many times before. The compromise position may be aimed at Justice Kennedy's cautious nature, giving him room to support gay rights without undermining the driving force of his judicial career.

Second, step-by-step progress may aggravate those of us who want to marry, but can't, but slow progress denies our opponents fodder to foment backlash. The President, a highly intelligent political actor, may be keenly aware that despite his electoral victory in November, he has a lot to accomplish and does not want to be in a position where he has to anger large swaths of the country and spend political capital where it need not be spent.

Third, it gives the Supreme Court a way out of a nationwide right to marry other than simply dismissing the case on jurisdictional grounds while still supporting the freedom to marry. Many legal experts are concerned that the Supreme Court may not be ready to find a sweeping right to marry that upends so many state constitutional provisions. Making a pro-gay marriage decision akin to the President's middle ground allows the Court to make a strong statement about freedom while still allowing the popular consensus to keep developing further and further in favor of the freedom to marry. A decision along the lines of the President's argument would nudge the already favorable popular view of same-sex marriage even further, thus giving the debate time to work itself out without a Roe v. Wade-type premature intervention.

Even if the President's middle ground may disappoint some vocal activists, the significance of his brief cannot be overstated. Yesterday marked the first time that a presidential administration has stated that a ban on same-sex marriage violates the Constitution. His brief will be read and taken to heart. Through this brief, President Obama -- the first "gay" President -- has solidified a legacy of compassion and progressivism that surpasses Lyndon Johnson's and Franklin Roosevelt's and Woodrow Wilson's. His brief in Hollingsworth will be remembered as a watershed, a moment after which the freedom to marry seemed inevitable. 


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.

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  1. I understand and appreciate the Administration's carefully and somewhat narrowly crafted brief and argument (Most amicus briefs are narrowly tailored to a specific viewpoint anyway). This one has some seriously clever strategy behind it, imo ... BUT ...

    What happens if the Supreme Court chooses Obama's crafty middle-path and ALSO strikes down section 6 of DOMA? Won't that leave an even more awkward patchwork of marriage and marriage rights strewn across the country?

    So what if a gay couple from North Carolina gets married in New York, and returns home to North Carolina? Their home state does not recognize their marriage, but - absent DOMA - is their New York marriage considered valid for federal purposes? If so, what a total hot mess! The federal benefits are the grand prize - so wouldn't most gay couples wishing to marry just do so in an equal marriage state?

    If I'm wrong, and the feds would not recognize a marriage performed in a couple's non-domicile state, how long would it be before someone sues to get rid of the other section of DOMA (sec. 2?) that allows states to deny recognition of only gay marriages from other states?

    The middle way seems untenably messy.

    Posted by: Zlick | Mar 1, 2013 12:32:35 PM

  2. Back in 2008-9, when the issue of equality for Gay people first came up on petition for certiorari before the Supreme Court, the Obama Administration argued against equality. Moreover, Stuart Delery was bribed by then-President-elect Obama to betray the Gay clients Delery had represented in the case before the Supreme Court. Delery abandoned the case, in exchange for being made a high-ranking DOJ official. Delery's firm (still representing the Gay clients) then opposed an equality decision by the Supreme Court for their own clients. Delery himself, once at DOJ, participated in the Obama administration decision to argue against equality.

    Make no mistake: Obama and Delery are no heroes. They belong in the same category as Bull Connor and George Wallace and every capo in the concentration camps.

    Posted by: James E. Pietrangelo, II | Mar 1, 2013 12:35:43 PM

  3. Excellent article. Required reading for all activists complaining about this brief.

    Posted by: dcinsider | Mar 1, 2013 12:36:23 PM

  4. I agree with Zlick that the middle way will, indeed, be messy. It seems to me, however, the only way to work through the fact that states do control civil marriage laws and that DOMA needs to be dealt with section by section in order to get things into place.

    Posted by: Steve Zupcic | Mar 1, 2013 12:42:35 PM

  5. @Ari, thanks for your analysis - however I don't agree with Obama's strategy and as I wrote in a previous article his response is yet another example of his flawed compromise compulsion. The fact is equal is equal, and while some response was better than nothing, this one falls flat. Hell, even the republicans filed a brief giving us more support. I also disagree with the Kennedy excuse. Kennedy wrote Citizen's United which was a broad decision that also overrode states authority. Is unlimited campaign cash more important than gay people being treated equally in 50 states? I don't think so. I still think Kennedy will want to complete what would be his trilogy of gay rights decisions. I also don't think Roberts will want to have one of his courts decisions overruled, especially while he is still CJ. They also aren't going to rule against Prop8 - that is why they have the "standing" escape hatch. Roberts won't tolerate another Dred Scott. This will be a historic moment, and at times like these, especially for civil rights the court tends to go large, not half-baked. Again, I really think Obama missed the mark, and unfortunately I'm not surprised.

    Posted by: Gerry | Mar 1, 2013 12:42:40 PM

  6. Clarification, when I wrote "rule against Prop 8" I meant they aren't going to rule against marriage equality...

    Posted by: Gerry | Mar 1, 2013 12:45:05 PM

  7. Always amazing how trolls INSIST on claiming things are bad when they're good.

    Posted by: KevinVT | Mar 1, 2013 12:51:37 PM

  8. Oh, and I realize my messy mess will exist anyway when DOMA is gone ... but if the "Obama Compromise is enacted, and 7 more states (including giant California) become ones where gays can marry and return home anywhere in the U.S. to reap federal marriage benefits, the messy mess will be just too messy to find our car keys, right?

    Posted by: Zlick | Mar 1, 2013 12:58:42 PM

  9. Excellent, Ari.
    There are far too many folk on the left bitterly complaining that this brief doesn't declare that there's a constitutional right to marriage. But the fact is, AFER and a number of other parties have already made that argument. And Olson and Boies will make it forcefully in front of SCOTUS.
    The genius of this brief is that, while it's not as emotionally fulfilling as a full-throated defense of marriage equality, it provides a SCOTUS that is unlikely to issue a sweeping ruling ushering in marriage equality nationwide a reasonable middle road—and one that by nearly doubling the number of states that do have full marriage equality would likely greatly reduce the time we have to wait for national equality.

    Posted by: 24play | Mar 1, 2013 1:29:55 PM

  10. @James E. Pietrangelo, II
    "Obama and Delery...belong in the same category as Bull Connor and George Wallace..."

    That's a really huge indictment. How about some cites or links? Don't just drop a bomb like that and run. Extraordinary claims require extraordinary proof.

    Posted by: homogenius | Mar 1, 2013 1:36:13 PM

  11. @Gerry: To your point " times like these, especially for civil rights the court tends to go large, not half-baked", Plessy v. Ferguson, which lasted decades and repudiated by Brown, would indicate otherwise -- hopefully going forward but IMO not historically.

    Further, we can espouse different legal theories and strategic analysis/approaches without questioning someone's motives or intent. AFER's brief asking for sweeping relief was considered an overreach by some and going beyond the questioned asked, particularly with this conservative court. I don’t necessary agree. But, I believe in multiple arguments in the “alternative”.

    As I have said before, I agree that Roberts, similar to Warren, is very interested in the integrity and legacy of the Court. I believe the outcome will be 6-3 (Prop8 [how expansion???]) and DOMA but one can never really know until the decision(s) comes down.

    Posted by: Belthazar | Mar 1, 2013 1:40:59 PM

  12. I was glad to see that the President did not make a Due Process argument and relied solely on Equal Protection. I do not believe that a civil marriage is a fundamental right, and I have concerns about where a holding that says it is could lead us. I think it leads us down a dangerous road to say that the Constitution requires the government to provide something when that something never appears in the text.

    A civil marriage is unlike a religious marriage (which would be a fundamental right and a Free Exercise issue). A civil marriage requires the participation of the state. A religious marriage does not.

    Due Process has acted as a restraint on government action. It has not acted as a requirement for action. Apart from the vote, which is explicitly mentioned in the Constitution, fundamental rights have been limited to issues that do not require the government' participation. Which of course makes sense since Due Process is a limit on the government's ability to act.

    Civil marriage is not like abortion or contraception. Those fundamental rights fall within the right to privacy. They are things that exist apart from the government's existance. Due Process acts as a limit to government intrusion on those rights. Civil marriage, on the other hand, does not exist apart from the government.

    A holding that civil marriage is a fundamental right simply does not make sense. That holding would essentially be a requirement that states (or perhaps the federal government) provide marriages. It simply does it make sense to say the Constitution requires the existence of marriage. That would raise a whole set of federalism issues too. If civil marriage is a fundamental right and must then be provided, is that a federal issue or is that something that's left to the states?

    If civil marriage is a fundamental right, then we are opening the door to future holdings in which the government is required to provide other things as well. The argument that it is a fundamental right is a radical departure from Due Process jurisprudence.

    The Equal Protection argument is the only one that makes sense and we should stick to that.

    Posted by: John | Mar 1, 2013 1:42:17 PM

  13. By arguing narrowly POTUS may be presaging the final ruling. That is, it's probably more efficacious to be more surgical and coherent than comprehensive and haphazard. I'm still hoping that SCOTUS will strike down all gay marriage bans, but that's looking more and more unlikely. At the same time, it's looking more and more likely we will get a ruling our favor.

    @KEVINCT It's amazing that people without adding anything relevant or explaining their contrary opinion just go on and call people names.

    Posted by: Kyle | Mar 1, 2013 1:48:00 PM

  14. John, how can you say a religious marriage does not require participation of the state? It is the state that gives legal effect to a religious marriage. A state official may not perform the religious marriage but it is the state that gives the religious institition the right to perform a marriage.

    Posted by: Swiminbuff | Mar 1, 2013 2:14:02 PM

  15. Homogenius: I can make those serious allegations because they are seriously true. So true that you won't see Obama or Delery taking any action to dispute them....

    Posted by: James E. Pietrangelo, II | Mar 1, 2013 2:16:51 PM

  16. @Zlick, actually, if the middle-of the road approach is embraced and section 3 of DOMA is struck down, the NC couple in your example would not be eligible for federal benefits. In all cases except gay couples (thanks to the unique legal hostility that DOMA requires towards gay people's marriages) the federal government looks to the state status to decide whether a couple is married. Section 3 of DOMA says that the government must ignore the state's determination of marital status only when the couple is of the same sex. If it were struck down, the norm that had prevailed in the US until 1996 would be restored. So, if a gay couple in Massachusetts wanted to file federal taxes jointly, the IRS would ask the state of Massachusetts "is this couple duly married according to your laws?" to which Massachusetts would reply, "yes." At that point, the IRS would conclude that they are married for the purposes of federal tax law and treat them as such. However, if that same couple moved to NC and applied to file their federal taxes jointly again, the IRS would ask North Carolina, "Is this couple duly married according to your laws?" to which NC would reply, "Ewww, no homo. We let the majority decide which of its rights the minority is allowed to exercise here!" and the IRS would say to them, "you are committing tax fraud, knock it off, you uppity f@gs, and pay your gay tax." I think this is why we will eventually have a court ruling that establishes a fundamental right to marry; all half-measures lead to nightmares like this, and the only other comparable situations involve minorities far too tiny for it to be a common problem (states differ on the marital status of 1st-cousin couples right now, for example. I find that especially infuriating; the government looks more kindly on incest than on our relationships.)

    Posted by: esperando | Mar 1, 2013 2:28:31 PM

  17. @John, it's too late. The Supreme Court has already ruled that marriage is a fundamental due process right 14 times.

    Posted by: esperando | Mar 1, 2013 2:30:11 PM


    Posted by: Susan | Mar 1, 2013 2:55:47 PM

  19. Heightened Scrutiny (also known as Intermediate Scrutiny) wins the war. No anti-LGBT law can survive it. Read the phenomenal Utah Pride Center brief filed yesterday,

    If the Supreme Court agrees with the Second Circuit in Windsor, the District Court in Hollingsworth and the Obama brief that heightened scrutiny applies to anti-LGBT laws, then no marriage ban, no adoption ban, no GSA Club ban, and no denial of fringe benefits to LGBT government employees can survive a lawsuit challenge.

    Posted by: John | Mar 1, 2013 3:07:01 PM

  20. Thanks, Esperando. Yes, that's less messy. I can find my keys now. And I will use them to start my car, and drive straight to the first lawyer who will take my case to strike down the rest of DOMA.

    Posted by: Zlick | Mar 1, 2013 3:54:55 PM

  21. @Zlick and Esperando-

    Whether residents of a red state can have the National Government recognize their marriage performed by a blue state is the precise nature of the mess. As a practical matter, the IRS does not require proof of a marriage to claim joint filing status. Federal law has never prohibited states from marrying non-residents (though Massachusetts did so for a number of years). A valid marriage license issued by any blue state or indeed most foreign governments should be an effective defense against a charge of tax fraud.

    Under DOMA, there is a presumption that where the names of the taxpayers indicate that they share a gender, that there is no marriage for federal purposes. If Windsor prevails, that basis for disrespecting marriages goes away.


    Absent DOMA, is there room for the Administration to decide that de facto marriages in the 9 states should be treated equally as de jure marriages for Federal purposes?

    Posted by: Rich | Mar 1, 2013 4:03:46 PM

  22. @ Swiminbuff

    Your confusion is exactly the point. A religious marriage does NOT require the okay of the state. This confusion between "civil" and "religious" marriage drives much of the opposition to equal marriage.

    If the Church of Swiminbuff offers its members the Sacrament of Marriage, the state has nothing to say about it any more than if you also offer the Sacrament of Speedo-Fitting.

    In the monolithic societies from which we are derived, there was not a lot of reason to distinguish between civil marriage (the ones entered into according to the state's laws) and religious marriage (the ones entered into according to the doctrines of your church) because there really wasn't much difference between them (and, purportedly at one point, because the only people who really were getting married were the children of the wealthy and powerful who benefited equally from the legal contract and the magical religious hoo-haw to awe the peasants and make it clear to the local Bishop that they were acknowledging his power, too.)

    Jump to today and we see that therefore straight people can get civilly AND religiously married in the same ceremony. And that's convenient (but not the only way to do it - in Monaco, for instance, a religious ceremony does not count civilly - you have to go to Town Hall, as well.) Your minister signs the same license as a judge would if you married at City Hall and mails it in to the government. But your minister's real job is entering the sacrament into the church's records. Conversely, if you get married by the judge, your church is probably not going to consider you married until you have the sacramental marriage required by its rules.

    If your state legislature completely did away with all the state's marriage laws (e.g. civil marriage) tomorrow, rest assured your priest or rabbi is still going to be happy (and - thanks to the Freedom of Religion clause - able) to perform the "sacrament of marriage" without a state license in hand. It just wouldn't mean anything on your tax return.

    The case in the Supreme Court is just about everyone being equally entitled to civil marriage. No one is trying to change religious practices. Westboro Baptist won't have to marry two lesbians, anymore than the Roman Catholic Church has to marry two divorced Catholics just because they can get married at City Hall. If we could get everyone to understand that they are two different things, we'd be even further ahead in the game.

    Posted by: Buster | Mar 1, 2013 4:52:53 PM

  23. I have had it to my eyebrows with this horse crap about middle ground, either we are citizens with equal rights and protections or we are not, there is no middle ground there, it is a zero or a one, on or off, yes no, and I have been waiting 35 years since I first found out I was not the only gay man, that we were not sick or deviants, I am now 55 and at the rate we are going gay people will not be free and equal till 2100. End the sexual apartheid YESTERDAY and screw the risks that some red state toads will not like it, this is like saying we can't free all the slaves all at once because some plantation owners will not appreciate losing their human property.

    Posted by: Markus | Mar 1, 2013 5:08:50 PM

  24. What Ari doesn't say is that he correctly analyzed the 9th circuit decision way back when it came down. No one is pressing its terrible can't-take-back analysis.

    I love the "married for federal purposes" question. Some federal laws think you are married if your marriage is recognized where you are domiciled. Others look at whether thr marriage was valid when and where celebrated. The administration may have some wiggle room if only because if they recognize same-sex marriages if a certain instance and someone wants to dispute that determination, those who object will have a hard time with the standing issue.

    Posted by: Chuckles | Mar 1, 2013 5:38:30 PM

  25. "Justice Kennedy's opinion in that case is the most important and sweeping gay rights decision in history"

    I seriously doubt that. The same-year marriage decision in Canada (in Ontario) is far more important, and led to marriage equality throughout Canada and in South Africa and in Massachusetts.

    Canada has always been a decade or more ahead of the US when it comes to LGBT rights. Too bad the amicus brief by US businesses completely ignored us, particularly when it comes to listing countries that US citizens may move to, in order to exercise their equal marriage rights. Canada has welcomes not just a few same-sex couples who would otherwise be living in the US.

    Posted by: Randy | Mar 1, 2013 5:43:46 PM

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