In a friend-of-the-court brief filed late last week, the Obama Administration is asking the Supreme Court to overturn California’s voter-approved ban on same-sex marriage in a legal argument that could imperil states’ bans across the country.
The Associated Press (AP) is reporting that the far-reaching legal arguments presented in the brief reveal that the president is moving away from his initial embrace of same-sex marriage as being an issue for the states and is seeking a broader ruling that would grant federal approval of the unions.
For instance, the brief goes further than just the California case and calls into question the constitutionality of civil unions in seven other states. Those states, the department said, violate the Constitution if they offer civil unions to gay couples but deny them the right to marry.
In a statement following the filing, Holder said “the government seeks to vindicate the defining constitutional ideal of equal treatment under the law.”
“Obama’s position, if adopted by the court, would likely result in gay marriage becoming legal in the seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island,” the AP writes.
“In the longer term, the administration urges the justices to subject laws that discriminate on sexual orientation to more rigorous review than usual, as is the case for claims that laws discriminate on the basis of race, sex and other factors.”
However, as the AP points out, the Supreme Court has never extended homosexual Americans the kind of special protections it affords to women and minorities.
“Obama again asserted a bold claim of full equality for gay Americans, this time in a legal brief,” said Richard Socarides, an attorney and advocate for same-sex marriage. “If its full weight and reasoning are accepted by the Supreme Court, all anti-gay marriage state constitutional amendments will fall, and quickly.”
But legal experts see that as a big “if”.
Speaking to NBC News, G. Edward White, Supreme Court scholar at the University of Virginia and author of “The American Judicial Tradition: Profiles of Leading American Judges” said he thought the impact of the brief on the Justice’s would be “virtually zero.”
“I really don’t think one should attach any legal significance to this particular intervention,” he said. “My takeaway is really that this is a symbolic act on the part of the administration. They’re doing it for political currency purposes. The justices are going to understand that’s what it is.”
ProtectMarriage.com, the group that brought the legal challenge to keep California’s ban on the books, called the president’s brief a “frontal assault” on the law by the Solicitor General in an email to supporters, calling it “a stunning declaration of war against the longstanding meaning of marriage and its obvious ties to society’s interesting in both mothers and fathers raising the next generation.”
Supporters of same-sex marriage view the upcoming hearings on this case, and another case related to the Defense of Marriage Act, as a potential watershed moment for same-sex unions.
The Justices are not expected to release a decision on the cases until sometime in June.
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