September 18, 2012 | by Chris Johnson
White House staying out of Prop 8 litigation
White House Press Secretary Jay Carney answers questions at the White House daily briefing

White House Press Secretary Jay Carney (Blade file photo by Michael Key)

White House Press Secretary Jay Carney declined to directly answer a question about whether the Obama administration wants the U.S. Supreme Court to take up litigation challenging California’s Proposition 8 or allow a lower court ruling striking down the same-sex marriage ban to stand.

In response to a question from the Washington Blade, Carney deferred to the Justice Department on whether the White House wants the high court to take up the case as a way to obtain a national ruling on same-sex marriage, or, as the plaintiffs have asked, let the ruling from the U.S. Ninth Circuit Court of Appeals stand to allow gay couples in California to marry immediately.

“That’s quite a question and I will ask you to direct it to the Justice Department,” Carney said. “I’m not going to make policy toward Supreme Court cases from here.

Carney also was mum in response to a follow-up question about whether Obama would generally support the idea of the Supreme Court taking up litigation that would institute marriage equality across the country.

Shaking his head “no,”  Carney replied, “I don’t have anything to say on that at this time.”

Nanda Chitre, a spokesperson for the Justice Department, responded to a follow-up inquiry on the Prop 8 lawsuit, saying, “We are not a party to this litigation and would decline further comment.”

Litigation challenging Proposition 8, now known as Hollingsworth v. Perry, has been docketed for the Supreme Court during its conference on Sept. 24. If justices decide to let the lower ruling stand, it would enable same-sex couples to marry in California.

Also docketed next week is one of the cases challenging DOMA, Windsor v. United States. The Justice Department has already asked the high court to take up the Windsor case — as well as other DOMA cases — to enable a national ruling on DOMA’s constitutionality. The Supreme Court may wait for a later conference when briefing for other DOMA cases is done to decide whether to take up cases challenging the constitutionality of the anti-gay law.

Evan Wolfson, president of Freedom to Marry, said in response to the exchange during the press briefing that he’s confident Obama believes in a constitutional right to marriage equality based on the “powerful and heartfelt case for the freedom to marry” that the president delivered in May.

“And I am sure that as president and as a constitutional law scholar, he well understands that the freedom to marry is a constitutional freedom, as recognized in cases such as Loving v. Virginia, which in 1967 ended different-race restrictions on marriage, just as we are today working to end same-sex restrictions on marriage,” Wolfson said. “As Justice Thurgood Marshall later wrote, ‘although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.’ I am confident President Obama understands the Constitution’s clear command, and the work we all must do to pave what we at Freedom to Marry call on our website “the roadmap to victory” in the Supreme Court.”

The American Foundation for Equal Rights, the organization behind the Prop 8 litigation, declined to comment on the Blade’s exchange with Carney.

Washington Blade: There’s going to be a lot of attention on the Supreme Court next week because it will consider whether to take up several pending marriage cases related to both the Defense of Marriage and California’s Proposition 8. The Justice Department has already made its views known on the DOMA cases, but given the president’s previously stated opposition to Prop 8 and his support for marriage equality, does the administration want the Supreme Court to take up the Prop 8 case in hopes of making some national ruling on same-sex marriage, or, as plaintiffs in the case have requested, do you prefer that the court allow the lower court ruling to stand striking down the marriage ban ruling just in California?

Jay Carney: That’s quite a question and I will ask you to direct it to the Justice Department. I’m not going to make policy toward Supreme Court cases from here.

Washington Blade: Generally speaking, though, would the president welcome the Supreme Court taking a case in which they could rule in favor of same-sex marriage across the country?

Carney: Yeah. I don’t have anything to say on that at this time.

UPDATE: This article has been updated to include a response from Evan Wolfson and the response from the Justice Department.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

4 Comments
  • I didn’t realize the Blade had a press pass to White House briefings and was able to ask questions of the press secretary. That’s good news in and of itself.

  • Obama has already taken the necessary steps to place Equality on the correct trojectory, and I thank him.

  • This is why Governor Gary Johnson, who is running for President as a Libertarian, has a superior position on marriage equality to President Obama. President Obama’s position is shockingly, a state’s right’s position. Gary Johnson says it is a civil right protected by the equal protection clause of the US Constitution and that marriage equality should be mandated through the Supreme Court nationally. I trust that Governor Johnson’s administration would have his Justice Department take up this issue with vigor and get the job done right!

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