Obama tells court to overturn marriage ban

President Obama on Thursday filed a legal brief against Prop 8. (Washington Blade photo by Michael Key)

The U.S. Justice Department on Thursday filed its brief against California’s Proposition 8 before the Supreme Court, arguing the ban on same-sex marriage violates equal protection under the U.S. Constitution and the measure should be subject to heightened scrutiny.

In the 33-page brief, U.S. Solicitor General Donald Verrilli makes a case against Prop 8 that focuses on the harm the ban on same-sex marriage causes to gay couples in California.

“Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage,” the brief states. “California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.”

The brief takes a somewhat narrow approach in its arguments by focusing on the marriage ban in California — in fact, it concludes the Ninth Circuit ruling against Prop 8, which affected only California, should be upheld — but has language that suggests the court should take a look at bans in other states.

While the question before the Supreme Court relates to Prop 8, the ruling — depending on its scope — could impact other anti-gay marriage bans in other states.

The Justice Department takes particular issue with the fact that California offers gay couples rights and benefits through its domestic partnership law, but excludes them from the institution of marriage.

“The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match,” the brief states.

Additionally, the Justice Department devotes considerable attention to disputing the arguments presented in the brief from the proponents of Prop 8, which was filed in January. Among the disputed arguments is that Prop 8 is necessary to ensure responsible procreation.

“To the extent the Voter Guide offered a distinct rationale favoring child-rearing by married opposite-sex couples, Proposition 8 neither promotes that interest nor prevents same-sex parenting,” the brief states. “The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents.”

Before this brief, the Obama administration hadn’t yet articulated whether any state ban on same-sex marriage — Prop 8 or otherwise — was unconstitutional. Even though President Obama has previously expressed his personal support for same-sex marriage, the brief represents another step forward in his position on the issue.

In a statement, U.S. Attorney General Eric Holder emphasized the importance of the Obama administration’s participating in the Prop 8 lawsuit as well as litigation challenging the Defense of Marriage Act.

“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law,” Holder said. “Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

Legal experts recognized the similarity of the arguments in the brief to the arguments against DOMA presented in the filing from the Justice Department.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the brief ”is careful to stick to the arguments” that the executive branch has already articulated in the DOMA litigation by limiting the argument to equal protection and heightened scrutiny.

“And in showing that responsible procreation and dual-gender childrearing do not constitute important governmental interests substantially related to Prop 8, the government addresses some of the same rationales it confronts in Windsor,” NeJaime said. “In many ways, then, this brief carefully stresses the commonalities between the DOMA litigation and Perry.”

LGBT advocates, who had been calling on President Obama to participate in the Prop 8 lawsuit, hailed the move as yet another example of his leadership on LGBT rights.

Richard Socarides, a gay New York advocate who was calling for the brief, said the argument presented should prompt the court to issue a ruling in favor of marriage equality.

“It is a bold and very strong defense of full equality.” Socarides said. “If the reasoning is accepted by the Supreme Court, all anti-gay marriage amendments will fall, and quickly.”

High praise for Obama also came from the American Foundation for Equal Rights, which had filed the case on behalf of the plaintiff couples.

“It is an unprecedented call to action by our government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law,” said AFER Executive Director Adam Umhoefer. “AFER looks forward to having Solicitor General Verrilli and the Federal Government by our side as we make the case for marriage equality for all before the Supreme Court.”