BREAKING: Obama Administration to File Amicus Brief on Prop 8

President Barack Obama.

President Barack Obama.

The US Department of Justice will file a brief in support of the two same-sex couples challenging California’s Proposition 8 at the Supreme Court on March 26, the New York Times and NBC News are reporting.

The US government is not a party to the suit, which has taken the State of California into federal court on the grounds that voters there, in November 2008, violated the federal constitutional rights of gay and lesbian couples in taking away the right to marry they had enjoyed since May of that year as a result of a State Supreme Court ruling.

Having no formal role in the litigation meant that the Obama administration had no obligation to weigh in on the case, though advocates have pressed Justice Department to speak up.

A wide array of other amicus briefs –– including one from a group of at least 75 prominent Republicans –– in favor of those challenging Prop 8 have been announced over the past week.

The couples, who are represented by noted litigators David Boies and Theodore Olson, hired by the American Foundation for Equal Rights, won a sweeping 2010 victory in the federal district court in San Francisco, when Judge Vaughn Walker concluded that denying same-sex couples of the right to marry violates their 14th Amendment equal protection rights. The Ninth Circuit Court of Appeals, last year, affirmed Walker, but on the narrower grounds that the couples’ rights were violated because voters rescinded a right previously granted.

That narrower interpretation, if upheld by the Supreme Court, would have an immediate impact only on the ability of same-sex couples to marry in California, not nationwide.

The Obama administration's brief does not make the broadest possible assertion of a federal constitutional right to same-sex marriage, but suggests that any state that offers all the rights and benefits of marriage in a civil union arrangement, but not marriage –– as California does in the wake of Prop 8, along with Hawaii, Nevada, Illinois, Delaware, New Jersey, and Rhode Island–– might be in violation of the Constitution. That argument does broaden the Ninth Circuit's finding in the case. In separate litigation, the Justice Department is arguing that the US Defense of Marriage Act’s denial of federal recognition of legal same-sex marriages violates the equal protection rights of those couples.

Significantly, the administration last week made the argument that claims of discrimination based on sexual orientation should be subjected to heightened scrutiny, which would put a heavy burden on justifying laws that treat gay and lesbian people differently.