The Obama Administration called on the U.S. Supreme Court Thursday to overturn California’s Proposition 8 ban on same-sex marriage, saying that it violates gays’ and lesbians’ right to equal treatment.
The historic step was taken in a friend-of-the court, or advisory, brief filed by U.S. Solicitor General Donald Verrilli in a pending case concerning the constitutionality of the 2008 voter initiative.
“Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex couples all the substantive rights of marriage, violates equal protection,” Verrilli wrote.
“By depriving same-sex couples of the right to marry,” Verrilli said, Proposition 8 “denies them the dignity, respect and stature accorded similarly situated opposite-sex couples under state law…and does not substantially further any important governmental interest.”
While President Obama had previously said he personally supports same-sex marriage, Thursday’s filing is the first time the federal government has officially opposed a state ban on such unions in court, according to Stanford University law professor Jane Schacter.
The federal government is not an official party in the Proposition 8 case and was not required to file a brief.
“This is a really important day in U.S. history,” said Theodore Boutrous, a lawyer for two couples who challenged Proposition 8 in a civil rights lawsuit.
“The U.S. government has said discrimination won’t be tolerated,” he said.
Andrew Pugno, a lawyer for the initiative’s sponsors and their committee, Protect Marriage, said, “Today’s unprecedented move by the Obama Administration to formally intervene against Proposition 8 is hardly surprising, but nevertheless disturbing.
“We are confident that the Supreme Court will recognize the limited role of the courts in this debate, and uphold the vote of California voters to protect traditional marriage,” Pugno said.
Proposition 8’s sponsors are appealing a ruling in which a U.S. appeals court in San Francisco last year overturned the measure.
The justices will hear arguments on March 26 and are expected to rule by the end of June.
The government’s filing was one of dozens of friend-of-the-court briefs submitted on both sides. Thursday was the deadline for briefs supporting the plaintiffs and it was not known until late in the day whether the administration would file one.
The brief argues that homosexuals are a minority group that should be given a level of legal protection known as “heightened scrutiny” because they have historically suffered discrimination and had limited political power.
But it stops short of explicitly asking the court to find a nationwide right to same-sex marriage.
Instead, the brief focuses on the situation in California, where the state’s domestic partnership law gives same-sex couples all the rights of marriage, including the right to raise children together, but not the name of the institution.
The brief argues that because same-sex couples already have those partnership rights, and there is no evidence that children fare worse with same-sex parents, or that gay marriage harms heterosexual marriage, Proposition 8 is based on “impermissible prejudice.”
“Prejudice may not, however, be the basis for differential treatment under the law,” Verrilli wrote.
Schacter, who specializes in constitutional law and sexual orientation law, said that if accepted by the court, Verrilli’s reasoning would apply to both California and seven other states that allow domestic partnerships or civil unions while banning same-sex marriages.
But she said the “tough standard” of heightened scrutiny would implicitly extend to all states that prohibit gay marriage.
Forty-one states currently ban same-sex marriage through laws or state constitutional amendments, while nine states and the District of Columbia allow it.
“I do think that heightened scrutiny, if applied faithfully, would result in the demise of all laws” against gay and lesbian marriage, Schacter said.
Proposition 8’s supporters maintain that a lesser standard known as “rational basis review” should apply to their appeal. They contend California voters had a reasonable basis for believing that restricting marriage to heterosexuals would help the institution and encourage responsible child-rearing by biological parents.
Schacter said she was not surprised by the administration brief because the government has made a similar argument advocating a heightened-scrutiny standard in a companion case concerning the federal Defense of Marriage Act.
In that case, unlike the Proposition 8 case, the U.S. government is an official party and was required to file a brief, and the issue is not a state ban but rather whether the federal government can refuse to recognize same-sex marriages performed in states where they are legal.
The Obama Administration agrees with a New York widow who claims that provision is unconstitutional, and the Republican congressional leadership has stepped in to defend the law. The high court will hear arguments on DOMA on March 27.
While today’s filing of a U.S. government brief opposing a state ban may be historic in the political world, Schacter and University of California at Berkeley law professor Jesse Choper said it may not have much impact on the court.
“It may be more politically rather than legally significant,” Schacter said.
“I think the administration’s position was known by what they filed in the DOMA case,” she said.
But “it certainly won’t hurt,” she said.
Choper, an expert on constitutional law and on the U.S. Supreme Court, said Tuesday that friend-of-the-court briefs “ordinarily have virtually no impact at most.”
He said that in the Proposition 8 case, the justices have already been bombarded with briefs and are very familiar with the issues.
Choper on Tuesday said of a possible Obama brief, “They know where he stands. It’s political.”
Julia Cheever, Bay City News
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