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With the U.S. Supreme Court set to consider the legality of the Defense of Marriage Act and California's Proposition 8, proponents of marriage equality hoped the Obama White House would step up and file briefs urging the justices to support civil rights.
The administration has now done just that. A week after filing a brief rejecting the constitutionality of DOMA, Obama administration attorneys yesterday made a related case against Prop 8, a state constitutional measure that prohibited same-sex marriage.
Like the arguments made by the lawyers for those who seek to overturn Proposition 8, and by a group of prominent Republicans earlier this week, the government's brief says any law attempting to ban same-sex marriage must be subjected to heightened scrutiny because it singles out a class of Americans, historically subject to discrimination, for unequal treatment. [...]
The government made mincemeat of the argument that same-sex couples threaten "traditional" marriage. "Petitioners' central argument is that Proposition 8 advances an interest in responsible procreation and child-rearing because only heterosexual couples can produce 'unintended pregnancies' and because the 'overriding purpose' of marriage is to address that reality by affording a stable institution for procreation and child-rearing," the brief said. "But, as this court has recognized, marriage is far more than a societal means of dealing with unintended pregnancies."
At a certain level, this may not seem especially noteworthy. After all, the White House has already championed gay rights in a wide variety of areas, including marriage, so it stood to reason that the administration not only opposed the legal rationale for Prop 8, but also hoped to see the Supreme Court strike it down.
But in this case, there's a little more to it, and it has to do with the scope of the administration's reasoning and the implications of its possible success at the court.
Greg Sargent explained the significance well.
...Obama's Solicitor General has made a sweeping case against Proposition 8 as unconstitutional, which is a bold move and makes it more likely that the Supreme Court will strike down the law with a similarly sweeping argument. This in turn could set a precedent for challenging the constitutionality of other state laws banning gay marriage -- potentially leading to full equality across the country. [...]
Because Supreme Court justices give weight to the opinion of solicitors general, this makes it more likely -- though it certainly doesn't assure this -- that the Court will adopt an equally sweeping ruling.... If the Court responds in kind, it will give gay advocates a powerful weapon to challenge other state laws around the country banning gay marriage, and they'd likely be toppled as unconstitutional -- one by one.
We'll explore this in more detail as we draw closer to the arguments, but the key principle to keep in mind is that of "heightened scrutiny." For proponents of marriage equality, including the White House, the argument is that measures banning same-sex marriage must be subjected to a higher level of legal scrutiny because they deliberately single out a specific group of people for unequal treatment.
In practice, this means it's incumbent on opponents of marriage equality to defend measures like Prop 8 by explaining how and why these laws "substantial related to an important governmental objective." And for the right, that's awfully difficult -- why in the world would the government need to stop two consenting adults who fall in love and want to get married from doing so? -- and leads to easily mocked arguments such as the one over "unplanned and unintended offspring" that I made fun of in late January.
The Obama administration's argument, in other words, is not only sound, it opens the door to sweeping national change. Here's hoping a high court majority finds it persuasive.
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Obama asked the Supreme Court to join him -and the rest of the nation- in the 21st Century.
"Don't bother us, Boy, " they replied. "We're still busy validating the 19th!"
So we get no birth control, no abortion, and we should have lots of unplanned and unintended offspring...but no childcare ???????????? You would think the republicans would embrace 'the gays' ;)
A hetrosexual couple I know just got married. They are in their 60s. They love each other and thought marriage was the ticket even though it is bad for them financially. In the world that justifies marriage as a way to deal with unintended pregnancies, this kind of marriage shouldn't be allowed. They have about as much chance getting pregnant as my daughter-in-law's cousin and his same sex spouse.
My 88-year old grandmother just got remarried to an 86-year old guy she's known for 50 years (it was super-cute.)
Wow... coffee addled Katherine is incomprehensible.
What I meant was: My 88-year old grandmother just got remarried. She married a guy she's known for 50 years. The wedding was super-cute.
(Javajavajavajavacoffeecoffeemochamocha)
This is gonna be an interesting fight.
I am pretty optimistic on this - I don't think Roberts wants to be on the wrong side of history here.
Why not? He seems willing to be on the wrong side of the Voting Rights Act.
On the other hand, since the Obama administration is against Proposition 8, that means that at least four justices are automatically for it, and will turn themselves into legal pretzels just to justify their position.
Maybe Obama needs to stop trying to please the Right. He often comes up with ideas and plans based on what the Right wants but consistently gets shot down. Much like teenagers who hate what their parents like (and will reverse their own stance if the parents suddenly approve), Obama should try reverse psychology and start "hating" whatever he really wants so that the Right will be for it out of spite. You work with little boys in men's bodies, you treat them like little boys in men's bodies.
So let me get this right - the SCOTUS opposes: gay marriage, civil rights, voting rights, abortion, and equal pay for women; yet they feel that "corporations are people" - and why are these automatons still on the bench?!?
I think it's time to start getting the pitchforks and torches out - these people are sanctioning fascism!
Because they haven't done anything that's considered an impeachable offense.
I know. Utter madness.
Actually I think Thomas and Scalia may be impeachable. Thomas' wife was paid about $750,000 to lobby against the ACA by the Heritage Foundation. Also, Thomas lied on his income tax form. These are only two instances of murky ethics on Thomas' part. There are more.
Scalia gloried in hanging out with Cheney and other Rethug pols while he was deciding cases in their favor. That's probably only the tip of the iceberg. I suspect that both Scalia and Thomas have a lot more money than they can legally account for although it's probably in the Caymans or some other offshore tax shelter.
I didn't say that they hadn't necessarily done anything impeachable, only that they haven't done anything considered impeachable...by those whose opinions on the matter really count. Meaning the House of Representatives. I don't see that lot impeaching those two, ever, for any reason, not even if they murdered their clerks in open session and danced on the corpses.
One of the founding principles of this nation is that you don't get to take away the rights of the minority by majority vote. Rights are sacrosanct.
Yes. Yes. Yes. That is the one and only question in this case.
Exactly. And in opening this door, the administration's call for "heightened scrutiny" leaves available the opportunity for SCOTUS to say that all such laws are unconstitutional.
A man being with a man is not marriage, so there is no "rights" being violated.
And with one sentence aljeff is consigned to internet oblivion.
The key question with Prop 8 is: "Can a majority vote away the minority's rights?" You would think the far right NRA types would be very worried about this precedent. After all 80% of Americans don't own guns.
Needless to say there is no “right” being infringed because a man joined with a man is not marriage to begin with and never has been (and courts do base decisions on precedence). It all comes down to the definition of marriage.
Here's hoping that we can finally join (at least some of us) the 21st century!
The Supreme Court's only job is to uphold the law. It cannot define marriage. It cannot redefine marriage; the people of California have defined marriage; and it is law. This is a government of the people and by the people, and we vote on laws.
A man joined with a man is sodomy, not marriage, and should be against the law. It is all about how you define marriage (or redefine it according to homosexuals)--and that is not the job of the Supreme Court.
Gender plays a crutial role family life, and a man with a man is not a family unit, and should not be treated as such. There are no special civil rights of a man being with a man, and it is definitely not marriage.
You do realize that just because you say, or believe, something, that doesn't make it true? The SC can "make" a law. It can "unmake" a law, if that law goes against guaranteed Constitutional rights. The citizens of a state, or the entire country, can, either through their representatives or via referenda, enact legislation that contravenes the Constitution. If that happens, then it is the duty of the SC to strike down the law/s.
Oh by the way, you also know, don't you, that all marriages in this country are civil and not religious; even those "performed" by a minister/pastor/rabbi/priest? When said minister/pastor/rabbi/priest signs a marriage certificate he/she is merely acting as a notary public - affirming that the information on the certificate is valid. Any ensuing religious ceremony isn't what makes the marriage legal, it's that signing of the marriage certificate that does.
It's why a marriage ceremony by a Justice of the Peace is just as valid as a marriage ceremony performed by a religous figure - marriage is a civil contract. Some people like to gussy it up with an additional religious ceremony, that's their choice.
Acually Doug, not all marriages are created equal. The Commonwealth of Pennsylvania, at least, does differentiate between civil and religious ceremonies. In PA, if the weddding is performed by a Judge ( any court ), or an elected Mayor, it is presumed to be proper and legal. If the ceremony is performed by a priest, minister, or rabbi, the burden of proof is on the couple, that the marrriage is not fraudulent. The County Clerks will take the completed marriage license, and file it, but any one may challenge your marital rights, at any point, on the question of whether or not the church was an actual church, whether the minister was properly ordained and recognised, and was your membership, and your spouse's membership in that church in good standing at that time. Personnally, my parents were married in mom's church, but on a New Jersey license, her parents eloped to MD, for a Maryland license.
From time to time I've posted links to some of the amicus briefs being filed in the Prop 8 and DOMA cases. Now, for the big kahuna: all of them, for and against.
Prop 8
DOMA