During a TV interview with ABC News’ Pierre Thomas that aired Sunday, Holder said filing a brief urging the court to rule in favor of marriage equality would be consistent with the administration’s action on the Defense of Marriage Act.
“We are proud of what we have done,” Holder said. “If the case comes before the Supreme Court, we will file something consistent with what we have done that would be in support of same-sex marriage.”
In response to a follow-up question, Holder affirmed he believes discrimination against gay people in terms of marriage is unconstitutional.
“I think that’s why we decided not to support the Defense of Marriage Act,” Holder said. “When you have differentiations that are made on the basis of sexual orientation, they should be subject to heightened scrutiny. That being the case, I think a lot of these measures that ultimately will come before the Court will not survive a heightened scrutiny examination.”
As marriage equality lawsuits continue to make their way through the judicial system, observers expect the Supreme Court will return to the issue as soon as next year. Justices delivered rulings on DOMA and California’s Proposition 8 in 2013.
Following the U.S. Tenth Circuit Court of Appeals ruling affirming that Utah’s ban on same-sex marriage is unconstitutional, Utah Attorney General Sean Reyes has already vowed to take up the matter with the Supreme Court.
Advocates have already welcomed the idea of the Obama administration participating in the marriage equality lawsuits. It wouldn’t be the first time the Obama administration has weighed in. The Justice Department submitted a friend-of-the-court brief in favor of overturning Prop 8 when the issue was before the Supreme Court.
It remains to be seen whether the brief that the Justice Department will submit next to the court will call for a nationwide ruling on marriage equality. The brief submitted in the Prop 8 case endorsed the idea known as the time as the “eight-state solution” in which states with domestic partnerships or civil unions would be required to extend full marriage rights to same-sex couples.
Evan Wolfson, president of Freedom to Marry, said he welcomes news the Obama administration would participate in marriage equality lawsuits before the court and the action is consistent with Holder’s record in favor of LGBT rights.
“The attorney general has consistently been a strong champion, faithfully upholding the Constitution’s command and putting the federal government on the side of families and freedom,” Wolfson said. “Of course, the Justice Department will find itself in good company, given the more than 20 federal and state rulings that have upheld the freedom to marry as we make our way to the Supreme Court.”