Yesterday, the Obama Administration filed a brief urging the Supreme Court to declare unconstitutional Proposition 8, California’s voter-approved ban on same-sex marriage. The brief does not explicitly endorse a constitutional right to same-sex marriage. Rather, it argues that “Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection.” “Prejudice,” the Justice Department sniffs, “may not. . .be the basis for differential treatment under the law.”
The notion that California is in an inferior position to defend a ban on gay marriage because it “grants same-sex partners all the substantive rights of marriage” is something that only a modern-day lawyer could come up with. Apparently, the Obama administration believes that California’s case would be stronger if it withheld more rights from gay couples. But doing so would exhibit more of the “prejudice” that the Justice Department decries.
I doubt that anyone at the Justice Department or in the Obama administration really believes the counter-intuitive theory that California’s ban is more problematic because of California’s relatively benign approach to gay marriage. Perhaps DOJ ended up making this argument, in part at least, because it is pitching to Justice Kennedy, the swing Justice in this case.
Kennedy has expressed libertarian views in other gay rights cases, but also believes strongly in federalism. Thus, the Justice Department wants to offer him ways to invalidate California’s gay marriage ban that do not entail a federalized redefinition of marriage.
But although the DOJ’s position may not logically entail such a redefinition, few doubt that this outcome would follow. As Richard Socarides, an adviser to former president Clinton on gay and lesbian issues puts it:
If the court accepts the reasoning that the White House has put forward, every state’s anti-gay-marriage amendment will fall quickly. Make no mistake about it, the brief is a very bold endorsement of full equality. . .This is fantastic.
California has formulated a middle ground position on the highly controversial and emotionally charged issue of gay marriage. This doesn’t necessarily mean that California has acted constitutionally. But please don’t pretend that to strike down California’s temperate resolution (for now) of the gay marriage issue would not be an affront to federalism.