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Mar 05 2013

Obama Takes Moderate Position on Marriage Equality

As expected, the Obama administration has filed a brief in the Prop 8 case before the Supreme Court. Lyle Denniston has a report on the brief, including the fact that Obama himself played a direct role in the position the DOJ took in the case. That position is a very cautious, moderate one that falls short of endorsing full marriage equality as a fundamental right.

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.
Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

“The Court can resolve this case,” the new brief said, “by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.” That final phrase was the brief’s strongest indication that the administration is not yet ready to take a firm position on whether the “fundamental right to marry” that the Court has recognized repeatedly is a right that should be open also to same-sex couples.

The eight states that apparently would be covered by the argument the Solicitor General has now made are California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

This is a very interesting position. And as a matter of strategy, it may not be a bad idea. I’ve already written that many of the other briefs have argued for an all or nothing conclusion, either full marriage equality nationwide or nothing, which is a risky thing to do. Justice Kennedy, who will certainly be the swing vote, may just not be ready to go that far but he may be willing to take a halfway position. I can’t recall a more complex and fascinating set of cases, both substantively and strategically.

8 comments

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  1. 1
    Sastra

    What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married.

    This sounds sort of like arguing that if you’re going to allow black people on the football team at all then you have to allow them on the first string. What you might call a black-and-white strategy. You’re banking on the assumption that most people aren’t going to be up for a full ban.

    Maybe.

  2. 2
    roggg

    Hmmm…I dont see a ton of value in this solution. As I understand it, this says that any state that substantively discriminates against gay couples should have the right to continue to do so, but any state that only nominally discriminates should stop doing that.

  3. 3
    Gregory in Seattle

    This is actually a very conservative position: The very few states that already effectively recognize same-sex marriage but do not should; all other states are perfectly free to be as bigoted as they want. An equivalent position 50 years ago would be to say that states which recognize interracial marriages done elsewhere should legalize interracial marriage, while states that do not remain perfectly free to criminalize interracial marriage.

    This is not progress.

  4. 4
    slc1

    It’s easy to criticize the administration here. However, it should be noted that the brief goes beyond the 9th Circuit Appeals Court verdict which would have applied only to California. That decision was aimed directly at Justice Kennedy, who, as Mr. Brayton notes might be reluctant to set a wider precedent but might be amenable to the Appeals Court decision.

  5. 5
    machintelligence

    This would seem to place states like Colorado, which is in the process of passing civil union legislation, but which has a constitutional ban on same sex marriage, in a strange position. Once the civil union act is passed, would our recently passed constitutional amendment banning same sex marriage become unconstitutional?

  6. 6
    eric

    I really don’t like that compromise. But if gay rights opponents also don’t like it, maybe that means it has a good chance of actually passing.

    I do worry that it’s just going to feed ammunition to people who want to prevent any benefits accruing to gay unions under any name. It is pretty easy to see how, if this compromise passes, an opponent to gay rights could run a very effective advertisement saying “we can’t give them hospital visitation rights, because if we do, the feds will force us to allow gay marriage!”

    The only reason I can see for supporting it is strategic: it probably won’t be stable, and in another few years SCOTUS may be forced to address some unforseen consequence resutling from this compromise ruling (much like Roe v. Wade). In the meantime, we will have gone that much further down the road and they may be more willing to support full equality. But that’s not a great reason. Its risky; we could, OTOH, end up stuck with this as the law of the land for a long time.

  7. 7
    freemage

    I’ll admit to being torn, here. It does appeal to the part of my brain that wishes state legislatures would stop pussy-footing around and just do it, already, but I recognize that there’s a long way between this and equal marriage rights for all, which I do wish was the administration’s official position.

    Of course, if this reasoning stands, it may then proceed to a “Full Faith and Credit” clause case (wherein a couple married in, say, Boston, moves to Austin, Texas, then sues to have their marriage recognized). And that, in turn, could lay the grounds for an Equal Protection case that just finishes the issue entirely.

  8. 8
    d.c.wilson

    This brief was probably written to speak directly to Justice Kennedy. The administration is probably afraid that an all or nothing strategy would drive him into Scalia’s camp.

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