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.