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

BY ARI EZRA WALDMAN

President Obama's decision to file an amicus brief in Hollingsworth v. Perry calling on the Supreme Court to strike down California's Prop 8 has been met with the kind of media coverage and commentary due an historic event. Media outlets are focusing mostly on the historic nature of the brief: A President of the United States is actively supporting the freedom to marry in the courts. Commentators are generally talking about the political impact of the brief: It keeps the President at the vanguard of the gay rights movement while giving some of the Supreme Court's conservative or cautious justices a path that recognizes the right of committed gay couples to marry without doing too much too fast.

As I discussed here last week, the President's brief is a most welcome product of his deeply held personal belief that all Americans are entitled to be treated equally regardless of sexual orientation. It is also a product of the pro-gay political winds of the day -- namely, after more than 100 Republicans signed on to a brief in support of striking down Prop 8, a progressive Democratic president that made support for gay equality a central part of his campaign and his inaugural address could not stand on the sidelines. The brief also reflects the President's cautious nature: he helped devise a middle ground position between accepting the freedom to marry in California alone and striking down every state marriage ban with one stroke of the pen. His so-called "8 State Solution" would delegitimize the gay marriage bans in those states that, like California, accord gay persons every possible right -- second parent adoption, domestic partnerships, benefits, and so forth -- but simply deny them the word "marriage." I wrote about this in more detail here.

The problem is that, when read in the context of the entire brief, the 8 State Solution makes no sense. If the Court takes the President's argument seriously, the justices need not stop at just 8 states. The President's theory could invalidate all marriage discrimination against gays.

AFTER THE JUMP, I bring some complex legal concepts down to earth and argue that President Obama's 8 State Solution is just a political proposal. His purely legal argument would go much further.

CONTINUED, AFTER THE JUMP...

Watch Eric Holder's Keynote Speech Before the LGBT Bar Association: VIDEO

Last night I wrote about how Attorney General Eric Holder delivered the keynote address at the LGBT Bar Association's Lavender Law Conference.

It was there that Holder, by far the most pro-equality attorney general in American history, told the gathered lawyers that they have a "solemn responsibility" to fight discrimination.

Well now you can watch C-SPAN video of that speech AFTER THE JUMP.

Eric Holder To LGBT Lawyers: You Have 'Solemn Responsibility' To 'Safeguard' Rights

Eric Holder delivered a keynote speech to kick off the LGBT Bar Association’s annual Lavender Law Conference this evening.

The Attorney General celebrated the Obama administration's pro-equality successes, including often-overlooked accomplishments like the Justice Department Civil Rights Division's work with local law enforcement on LGBT discrimination and filing the first indictment under a federal hate crimes law, but he also reminded the lawyers that much work needs to be done, and challenged them to use the current "momentum" to win equal rights.

"I’m also here to ask for your continued help, to draw on your considerable passion and expertise, and to reiterate the Department’s commitment – and my own – to building on the momentum we’ve established, and ensuring that the recent successes we’ve seen are just the beginning," Holder said, according to the Washington Blade. "As current – and aspiring – leaders of the bench and bar, everyone here tonight understands what’s at stake. You realize how important every hard-fought legal victory – large and small – really is."

With their positions and appreciation of the law, said Holder, the men and women gathered have a "solemn responsibility" to fight for equality:

You are – or soon will be – uniquely situated to use the power of the law, as well as your own gifts and knowledge, to help build a more fair, more equal, and more just society. And you have not only the power, but – I believe – the solemn responsibility, to do precisely that: to safeguard the rights and freedoms of everyone in this country, and to carry on the critical but unfinished work that lies ahead.

Of course, this never has been – and never will be – easy.  But as I look around this room, I can’t help but feel optimistic about where your efforts will lead us – and how far our collective commitment will take us – in the months and years ahead.  With the benefit of your partnership and the strength of your passion, I know that we can – and I’m confident that we will – continue the work that has become both our shared priority and common cause.  And I look forward to all that we will surely accomplish together.

House Holds Eric Holder In Contempt For Fast And Furious Files

Attorney General Eric Holder made history today, and unlike his vow not to defend the discriminatory Defense of Marriage Act, this accomplisment is not worth celebrating.

For the first time ever, the House of Representative voted 255-67 to a sitting Justice Department head in criminal contempt. In Holder's case, it's for his refusal to turn over documents relating to the Fast and Furious gun-running scandal that was sparked by the death of a border agent named Brian Terry. According to CNN, nearly all of the House Republicans voted "yea" and were joined by 17 Democrats.

Holder doesn't seem too stressed about the being held in contempt. He described the vote as "the regrettable culmination of what became a misguided — and politically motivated — investigation during an election year."

"By advancing [this case] over the past year and a half, Congressman (Darrell) Issa and others have focused on politics over public safety," said Holder.

"Instead of trying to correct the problems that led to a series of flawed law enforcement operations, and instead of helping us find ways to better protect the brave law enforcement officers, like Agent Brian Terry, who keep us safe — they have led us to this unnecessary and unwarranted outcome."

DOJ Files Expansive Brief Supporting Lesbian's Health Benefit Lawsuit

The Department of Justice appears to be stepping up its work against the Defense of Marriage Act.

After months of taking vague stands against the 15-year old law's unconstitutionality, the DOJ offered a more robust and forceful objection in a brief filed yesterday supporting federal court employee Karen Golinski's lawsuit asking for equal health benefits for her wife.

Golinski's case had previously been dismissed, although a judge left the door open for more arguments on the matter.

The DOJ filing is significant for two reasons: one, the Obama administration previously opposed her lawsuit; and, two, it goes further than any other brief in explaining how the federal government has consistently discriminated against LGBT citizens.

This could change everything.

Read more, AFTER THE JUMP...

Washington Post Calls for Moratorium on Deportations of Gay Foreign Nationals in Legal Same-Sex Marriages

The Washington Post editorial board called on Eric Holder to stop the deportations affecting married binational same-sex couples under unfair immigration laws:

DOMA has been an impediment to the rights of gay men and lesbians since its inception in 1996. It withholds from same-sex couples the legal protections, obligations and privileges enjoyed by their heterosexual counterparts. Repeal appears out of reach, but Attorney General Eric H. Holder Jr. announced in February that the Justice Department would no longer defend DOMA in court, after concluding that it is 

The attorney general has vacated the court decision and asked the Board of Immigration Appeals whether Mr. Dorman’s civil union makes him a “spouse” under New Jersey law and whether, absent DOMA, he would be considered a “spouse” under immigration law. Mr. Holder should erase any confusion by declaring a moratorium on removal of foreign nationals in state-recognized same-sex unions until federal courts determine DOMA’s constitutionality. He should ensure that the government is not focusing on breaking up otherwise law-abiding families.

Don’t penalize undocumented gay immigrants in civil unions with U.S. citizens [washington post]

(via lavi soloway)