The Obama administration will take part in the lawsuit challenging California’s Proposition 8 by filing a friend-of-the-court brief before the Supreme Court, according to a report on Thursday by NBC News’ Pete Williams,
The report comes on the deadline day for submitting friend-of-the-court briefs in favor of the same-sex couples challenging Prop 8 in the lawsuit filed by the American Foundation for Equal Rights.
LGBT advocates have been pushing for the Obama administration to take part in the Prop 8 lawsuit amid uncertainty over whether the court will decide to uphold the same-sex marriage ban or strike it down.
Rick Jacobs, co-founder of the Courage Campaign, issued a statement commending President Obama for “standing-up for millions of Californians who simply want to marry the person they love.”
“The two Supreme Court cases this summer will be a watershed moment for equality and President Obama has put his Administration squarely on the right side of history,” Jacobs said. “Discrimination and hatred have no place in a country founded on the principles of liberty, justice and equality.”
The Justice Department has already taken part in the case against the Defense of Marriage Act before the Supreme Court. Just last week, the Obama administration filed a brief contesting DOMA on the basis that laws related to sexual orientation should be subjected to heightened scrutiny.
But it remains unclear what the scope of the Prop 8 brief will be. The most sweeping argument the Justice Department could make is that state bans on same-sex marriage are unconstitutional and marriage equality should be instituted across the nation.
That argument would be consistent with the administration’s position on DOMA that laws related to sexual orientation should be subject to heightened scrutiny.
The Obama administration could also ask for a narrow ruling along the lines of the ruling in the case from the U.S. Ninth Circuit Court of Appeals. That argument — which would only affect California — would be that Prop 8 is unconstitutional on the basis that the right to marry can’t be taken away once it’s granted to same-sex couples.
Another option for the brief is to argue that proponents of Prop 8, such as ProtectMarriage.com, don’t have standing to defend the measure before the Supreme Court. That would be the most narrow argument because it wouldn’t broach the issue of Prop 8’s constitutionality.
Despite calls from LGBT advocates, the White House has been tight-lipped about whether it would file a friend-of-the-court brief for months and had no comment on the deadline day for filing the brief.
On Thursday during the White House news briefing, press secretary Jay Carney deferred all questions related to Prop 8 to the Justice Department.
Asked at the top of the briefing by the Associated Press whether the administration will file a brief, Carney said he won’t talk legal issues from the podium.
“As I’ve said in the past, decisions about filing briefs are legal and constitutional matters, so it’s best to address those questions to the Department of Justice,” Carney said.
Later in the briefing, the Chicago Tribune’s Christi Parsons asked Carney to talk about the deliberative process by which Obama was considering participating in the Prop 8 case. Again, Carney had nothing to say.
“I really don’t have anything for you on it, the president obviously has expressed an opinion in the past on this issue as a matter of policy, but when it comes to a legal and constitutional issues around it, that’s a jurisdiction that resides with the Department of Justice, so I dont have anything for you on it,” Carney said.
In response to the Washington Blade’s request for comment, Nanda Chitre, a Justice Department spokesperson, said Thursday said she had “no update” on whether Obama would file a brief. The White House also had no comment.