Bloomberg News

Obama Lawyers Back California Gay Marriage at High Court

March 01, 2013

Obama Lawyers Said to Back Gay Marriage at U.S. High Court

A same-sex couple kiss after requesting and being rejected for a marriage license at the County Clerk’s Office in Los Angeles in this file photo. Photographer: Robyn Beck/AFP via Getty Images

President Barack Obama’s administration urged the U.S. Supreme Court to reinstate same- sex marriage in California, calling for broad constitutional protections that ultimately could let gays marry nationwide.

The filing adds a new and powerful voice behind the legal bid for same-sex marriage. The administration stopped short of directly calling for that right across the U.S., saying the court should focus on “the particular circumstances presented by California law.” At the same time, the government’s reasoning would leave the 41 states that ban gay marriage little room to defend their laws.

The law “doesn’t provide any rationale for discriminating against same-sex couples other than just the notion that, well, they’re same-sex couples,” Obama told reporters today.

The administration said gays should be afforded special constitutional protection, known as “heightened scrutiny,” much as racial minorities and women are under the Constitution’s equal protection clause. That would shield gays against discrimination in housing and employment, as well as marriage.

The brief “creates a clear path for marriage equality across the United States,” said Theodore Boutrous, one of the lawyers challenging the California ban, known as Proposition 8. “The arguments from start to finish would apply to other states.”

Charles Cooper, a lawyer representing the defenders of the California ban, said he didn’t have a comment on the brief.

Courting Administration

The 33-page filing came just hours before the court’s deadline yesterday, ending months of White House and Justice Department deliberations. Both sides in the California case met with U.S. Solicitor General Donald Verrilli in January to seek the administration’s support. The White House had the option of staying out of the case.

“I didn’t feel like that was something that this administration could avoid,” Obama said today.

The brief was one of a slew this week to call for same-sex marriage rights -- a move aimed at influencing the court and particularly Justice Anthony Kennedy, the likely swing vote.

One brief came from dozens of publicly traded companies, including Apple Inc. (AAPL:US) and Morgan Stanley (MS:US), while a second was filed on behalf of scores of prominent Republicans, including seven former governors and actor Clint Eastwood.

March Argument

Fourteen states also are backing gay marriage at the high court. They include California and four other states that currently don’t offer same-sex marriage licenses: Delaware, Illinois, New Mexico and Oregon. A group of 13 states led by Massachusetts argued that Proposition 8 “codifies the second- class status” of gays and their families.

The justices will hear arguments on March 26 on Proposition 8, the 2008 ballot initiative that halted gay marriage after it was allowed for five months following a California Supreme Court decision. Yesterday’s filing means Verrilli, Obama’s top courtroom lawyer, will probably take part in that session, making the case for gay marriage in the nation’s most-populous state.

Obama and Verrilli “have taken another historic step forward consistent with the great civil rights battles of our nation’s history,” said Chad Griffin, president of the Human Rights Campaign, which supports gay marriage.

The activists challenging Proposition 8 are asking the court for a sweeping ruling that would force all 50 states to allow such unions. Nine states and the District of Columbia now permit same-sex marriage.

Eight States

The Obama filing hinted at one path for the court that might quickly boost that number to 17, an approach that has been dubbed the “eight-state solution” by Kenji Yoshino, a professor at New York University School of Law.

The administration said those eight states -- California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island -- improperly let gay couples form partnerships that have all “substantive rights and obligations of marriage,” without marriage itself.

The designation of marriage “confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match,” Verrilli argued.

The filing comes as public support for gay marriage hits all-time highs. A poll released yesterday shows Californians now back gay marriage by almost 2-1, with 61 percent supporting it and 32 percent opposed. The Field Poll had a margin of error of plus or minus 3.5 percentage points.

Inauguration Hopes

Obama raised hopes among gay-marriage supporters by using his inauguration speech to advocate legal equality for gays.

“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said. “For if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

The decision on the Proposition 8 case was a delicate one for Obama, both politically and legally. The president, who won the support of 76 percent of gay voters for his November re- election, had previously coupled his personal support for gay weddings with a call for states to continue taking the lead role on defining marriage.

“This is an issue that is going to be worked out at the local level because, historically, this has not been a federal issue,” he told ABC News in May, when he announced his support for same-sex marriage.

Defense of Marriage

The administration also faced the challenge of reconciling its position on Proposition 8 with its filing in a second gay- marriage case before the court. It involves the U.S. Defense of Marriage Act, which says the federal government will recognize only heterosexual marriages. Under the law, known as DOMA, same- sex spouses can’t claim the federal benefits available to other married couples, including the right to file joint tax returns.

The Obama administration is opposing DOMA, in part on the grounds that it encroaches on the traditional role of states to define marriage. DOMA “breaks from that established tradition of deference to state marriage laws,” Verrilli said in court papers in that case.

Had the administration stayed out of the Proposition 8 case, it would have been following the lead of President Lyndon Johnson, whose lawyers took no position when the Supreme Court considered interracial marriage in 1967. The court ruled unanimously that such unions were a constitutionally protected right.

The cases are United States v. Windsor, 12-307, and Hollingsworth v. Perry, 12-144.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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