Obama on Prop 8: How sweeping is administration support for gay marriage?
Even if the Supreme Court agrees with President Obama's brief arguing that California's Prop. 8 is unconstitutional, that doesn't mean there will be a nationwide right for gays to marry.
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But as the US brief points out, if the Supreme Court agrees and strikes down the California statute on these grounds, that does not mean the justices will have established a nationwide right for gays to marry. What it does mean is that the eight states that allow full civil unions but prohibit gay marriage will have to take the last step and lift their own marriage bans.Skip to next paragraph
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“The Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here,” says the US brief.
That’s not the full extent of the administration’s position. The brief also argues that in the longer term, the Supreme Court should subject laws that discriminate on the basis of sexual orientation to a type of judicial review known as “heightened scrutiny.”
This rigorous test is now applied to laws that discriminate on the basis of race, sex, and a few other factors. If the high court agrees and lumps discrimination against gays in with these other categories, same-sex marriage bans around the country could be imperiled.
“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,” writes Amy Howe on SCOTUSblog.
This complicated brief reflects Obama’s own complicated relationship with the issue. In 2008, he said he opposed California’s same-sex marriage ban, but did not go further and endorse gay marriage as an institution. In 2012, he said he was personally in favor of same-sex marriage, but that states should have leeway to control the definition of marriage within their own boundaries.
Then in his inaugural address, he seemed to indicate yet more movement.
“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” Obama said.
Asked on Friday why the US did not file a brief calling for a more sweeping legalization of same-sex marriage, Obama said, “That’s an argument I’ve made personally," but that Hollingsworth v. Perry deals only with the constitutionality of California law, and thus the US limited its legal reasoning in the case.