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...