In the brief that it filed [last night], the federal government urged the Court to declare Proposition 8 unconstitutional, but it did not go as far as supporters of same-sex marriage would have liked and argue that all same-sex couples, throughout the United States, should necessarily have the right to marry. That question, it told the Court, could be decided later. Instead, it wrote, when a state such as California allows committed same-sex couples to have virtually all of the rights and benefits of marriage through laws allowing civil unions or domestic partnerships, but doesn’t allow those couples to get married, it is treating the same-sex couples differently because of their sexual orientation. Because that different treatment, the government explains, makes no sense, it violates the Constitution’s requirement that everyone will be treated equally. Moreover, the government observed, “California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8” —that is, promoting the conception and rearing of children.
If the Court were to agree with the federal government, that would be enough to decide the case in the challengers’ favor and rule that Proposition 8 cannot stand. The Court would not need to decide (as the trial court did in the case) whether there is a broad constitutional right for same-sex couples to get married. And its ruling wouldn’t have any immediate effect beyond the eight states – in addition to California, Rhode Island, New Jersey, Delaware, Oregon, Nevada, Hawaii, and Illinois – that currently have such civil unions and domestic partnerships. However, the Court’s reasoning might then lay the groundwork for it to strike down other states’ laws banning same-sex marriage, even when the states do not offer a civil union for same-sex couples. But that might take a while, by which point the country and the Court might be more ready to do so – which may well have been the Obama administration’s goal all along.
While The White House's amicus brief wasn't as broad as some equality activists were hoping for, it's still quite significant. Here's what the President said himself on the matter today.
And here's Steve Benen decoding the significance of yesterday's amicus brief.
[... T]he 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.
So while the administration's brief doesn't demand marriage equality nationwide immediately, it essentially sets up a legal chain reaction. If the high court agrees, then the legal burden going forward will be on opponents of marriage equality to try to defend discrimination. And since "The Supremes" will have already ruled in favor of marriage equality this year, it will have a handy dandy precedent (in favor of equality) for future marriage cases.
This is actually better than the very narrow Ninth Circuit ruling last year. In that ruling, the Ninth Circuit Court of Appeals tailored its ruling to just California and cited Romer v. Evans as precedent. That was the 1995 US Supreme Court ruling that invalidated Colorado's ban on non-discrimination ordinances because it unfairly attacked the civil rights that LGBTQ people already had. If the Court takes this route, a Prop 8 overturn will only apply to California for now... Though even that still sets up a favorable precedent for Nevada's own Sevcik v. Sandoval, along with other future marriage suits.
What The White House is arguing for is much broader than the Ninth Circuit ruling. And if agreed to by The Supreme Court, it's one that will be experienced here in Nevada quite soon. Here's Towleroad's Ari Ezra Waldman with a clear explanation.
President Obama takes on eight states --California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island -- whose policies can be described as "everything but marriage." These states give gay couples all the trappings of marriage, the right to adopt as couples, and all the protections a gay person could want other than the word "marriage." It is for this reason that bans on marriage make no sense in California and, by implication, in these seven other states. This compromise allows the President to make a forceful argument in favor of the freedom to marry, but still leave some wiggle room for the rest of the states.
There is reason to believe that this makes strategic sense.
First, the President knows that Justice Kennedy is the likely swing vote in this case and Justice Kennedy is a cautious, conservative jurist. He has a history of respecting states' rights above all else and often rejects sweeping policies that reek of overreach. Incremental change, if any change at all, seems to be his mantra, as Professor Kenji Yoshino has argued many times before. The compromise position may be aimed at Justice Kennedy's cautious nature, giving him room to support gay rights without undermining the driving force of his judicial career. [...]
[In addition], it gives the Supreme Court a way out of a nationwide right to marry other than simply dismissing the case on jurisdictional grounds while still supporting the freedom to marry. Many legal experts are concerned that the Supreme Court may not be ready to find a sweeping right to marry that upends so many state constitutional provisions. Making a pro-gay marriage decision akin to the President's middle ground allows the Court to make a strong statement about freedom while still allowing the popular consensus to keep developing further and further in favor of the freedom to marry. A decision along the lines of the President's argument would nudge the already favorable popular view of same-sex marriage even further, thus giving the debate time to work itself out without a Roe v. Wade-type premature intervention.
Even if the President's middle ground may disappoint some vocal activists, the significance of his brief cannot be overstated. Yesterday marked the first time that a presidential administration has stated that a ban on same-sex marriage violates the Constitution. His brief will be read and taken to heart. Through this brief, President Obama -- the first "gay" President -- has solidified a legacy of compassion and progressivism that surpasses Lyndon Johnson's and Franklin Roosevelt's and Woodrow Wilson's. His brief in Hollingsworth will be remembered as a watershed, a moment after which the freedom to marry seemed inevitable.
If The Supreme Court agrees with this Obama Administration amicus brief, then we will see marriage equality here in Nevada this year. After all, this argument meshes quite well with Lambda Legal's argument in Sevcik. SB 283 is supposed to provide legal equality to gay & lesbian couples, yet Question 2 keeps them in a separate & unequal status because they can't actually have the same marriage rights as straight couples. If the high court takes this route, then Nevada's Question 2 (along with marriage bans in other states that have civil unions & DP's) must fall along with California's Prop 8. And this enables the Court to issue a fairly broad ruling in favor of marriage equality and expanded LGBTQ civil rights without risking the backlash of a "blanket" nationwide order for immediate marriage equality (for all 50 states). Still, this leaves the door open for just that kind of outcome in the not-too-distant future.
So there's plenty at stake for Nevada's LGBTQ families at The Supreme Court this spring. President Obama may ultimately expedite Nevada's evolution to full marriage equality. We'll have to wait and see if the high court green lights this.