WASHINGTON The Obama administration abandoned its states' rights position on marriage Thursday (Feb. 28) by asking the Supreme Court to overturn California's Proposition 8, and in the process it laid the legal groundwork for legalizing gay marriage nationwide.
The friend-of-the-court brief by the Obama Justice Department urged the Supreme Court to overturn California Prop 8, the 2008 voter-approved amendment that defined marriage as between one man and one woman. The department stopped short of calling for gay marriage in all 50 states, although it urged the justices to use a form of review called "heightened scrutiny" that likely would result in gay marriage legalization from coast to coast.
The brief was released the same day that Attorney General Eric Holder, in an interview with ABC News, called gay marriage the "latest civil-rights issue."
Prop 8, the brief states, "target[s] gay and lesbian people for discriminatory treatment."
The Justice Department was not required to issue the brief but was under pressure from gay marriage groups to do so. The brief specifically targets California and the other seven states that have legalized civil unions or domestic partnerships but not gay marriage: Delaware, Hawaii, Illinois, Rhode Island, New Jersey, Oregon and Nevada. The brief mentions all seven states by name. Civil unions and domestic partnerships grant all the legal benefits of marriage, minus the name.
"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," it states. "It indicates that Proposition 8's withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing petitioners' central claimed justification for the initiative but instead on impermissible prejudice."
It is the brief's call for a "heightened scrutiny" review of Prop 8 that is most significant. Supporters of Prop 8 had asked the court to review Prop 8 under what is called "rational basis," which essentially holds that as long as there was a rational reason for passing the law, it should stand. But laws reviewed under heightened scrutiny are more likely to be reversed. It is a standard normally applied to laws that impact, for instance, race and sex. The Justice Department previously asked the court to review the Defense of Marriage Act under heightened scrutiny.
The Supreme Court has yet to apply laws impacting sexual orientation to a heightened scrutiny review. If it does, though, every traditional marriage law in America is in danger.
The Justice Department could have a high hurdle convincing a majority of the court to apply heightened scrutiny to sexual orientation. For it to apply, four criteria must be met. It must be shown that:
1. Gays and lesbians have "suffered a significant history of discrimination in this country."
2. "Sexual orientation generally bears no relation to ability to perform or contribute to society."
3. "Discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic."
4. Gays and lesbians are a "minority group with limited power to protect themselves from adverse outcomes in the political process."
It is the final point that the supporters of Prop 8 are likely to focus on, asserting that the opposite actually is true today. In fact, ProtectMarriage.com the official proponents of Prop 8 argued in its opening brief to the court that supporters of gay marriage are making significant progress in redefining marriage, with the support of the public.
"Public opinion and State laws are evolving rapidly as the democratic conversation regarding marriage continues to unfold," the brief said. "Indeed, at the last election the People of Maine, Maryland, and Washington voted to redefine marriage. Notably, in Maine, the People had rejected a similar proposal just three years before. Even in California, proponents of redefining marriage have vowed to seek to repeal Proposition 8 by initiative if it is upheld by this Court."
Thus, Prop 8 supporters likely will argue that when supporters of gay marriage won landmark victories at the ballot in 2012 demonstrating they are not politically powerless they actually hurt their cause at the Supreme Court, because heightened scrutiny does not apply.
When President Obama announced his support for gay marriage last year, he implied he wanted to continue allowing states to decide the issue.
"I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage," he said.
Obama further said, "I think it is a mistake to try to make what has traditionally been a state issue into a national issue."
Andy Pugno, general counsel for ProtectMarriage.com, expressed disappointment that Obama had reversed course.
"By arguing that Proposition 8 is rooted only in irrational prejudice, the President has impugned the motives of millions of Californians, turned his back on society's long-standing interest in both mothers and fathers raising the next generation, and disregarded the rights of each state to decide for itself whether to re-define marriage," Pugno said. "... We are confident that the Supreme Court will recognize the limited role of the courts in this debate, and uphold the will of California voters to protect traditional marriage."