Obama Administration Steps Up on Prop 8

President Barack Obama and Attorney General Eric Holder.

President Barack Obama and Attorney General Eric Holder.

The US Department of Justice (DOJ) has filed a brief in support of the two same-sex couples seeking to overturn California’s Proposition 8. Their case will be heard by the Supreme Court on March 26.

The administration does not explicitly argue there is a federal constitutional right to marry, but in nuanced fashion it does strongly suggest that the factors that create equal protection violations in Prop 8 can be found in state enactments elsewhere that grant civil union protections to same-sex couples but not access to marriage.

The US government is not a party to the suit, which is challenging the state of California in federal court on the grounds that voters there, in November 2008, violated the federal constitutional rights of gay and lesbian couples by taking away the right to marry available as a result of an earlier State Supreme Court ruling.

In a nuanced brief, Justice Department undermines arguments for differential treatment of same-sex couples

Having no formal role in the litigation meant that the Obama administration had no obligation to weigh in on the case, though advocates had pressed the Justice Department to speak up. The government needs to identify its interests in filing an amicus brief in a case to which it is not a party. Here there are two.

First, the government wants to achieve a consistent resolution on the level of judicial scrutiny applicable to sexual orientation discrimination claims. In a separate case challenging the federal Defense of Marriage Act (DOMA), which will be heard by the high court on March 27, the Obama administration is arguing for heightened scrutiny, which places a high burden on any law that treats people differently based on their sexual orientation.

The DOJ brief points out that the government has, in the past, submitted amicus briefs when the Supreme Court was considering what level of review to apply to an equal protection claim where litigants challenged a state or local government, since the federal government has its own programs and policies that might be affected by the case’s outcome.

That is certainly true regarding the Prop 8 litigation.

A Supreme Court finding based on heightened scrutiny could affect the constitutionality of any federal law or policy that subjects gay people to unequal treatment, by making those laws presumptively unconstitutional and putting the burden on the government to justify them by showing they substantially advance an important government interest.

The administration’s brief also notes that the government has an interest in the case because many of the arguments made in support of Prop 8 by its Official Proponents –– who are defending it in the absence of the state of California doing so –– have also been made in support of DOMA’s ban on federal recognition of legal same-sex marriages. The federal government has a legitimate interest in seeing these issues resolved in consistent fashion.

The DOJ brief basically replicates arguments the administration is making in the DOMA case about why claims of sexual orientation discrimination merit heightened scrutiny, countering arguments to the contrary by the Prop 8 Proponents’ attorney, Charles Cooper. After pointing out that California law provides all the state law rights of marriage to same-sex couples and that Prop 8 does not withdraw any of those rights, the brief states, “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.”

In other words, the brief, in supporting the plaintiff couples –– who are represented by noted litigators David Boies and Theodore Olson, hired by the American Foundation for Equal Rights (AFER) –– is focused on whether Prop 8 is constitutional, not more broadly on the ability of states generally to deny same-sex couples the right to marry.

The brief filed last week by the City and County of San Francisco focused on the withdrawal of rights from same-sex couples who were able to marry in California until Prop 8 was passed, harkening back to precedent established in 1996 when the Supreme Court struck down Colorado’s Amendment 2, which barred enactment of any gay civil rights protections in that state.

In contrast, the DOJ brief focuses on why there is no rational basis for giving same-sex couples all the rights of marriage and then denying them marriage itself. Implicit in this approach is the argument that any state that provides civil union or sweeping domestic partnership rights to same-sex couples is in violation of the US Constitution. Resisting the next step that would give the status of marriage to such unions violates the equal protection rights of couples if a state has already determined they should have all the rights and benefits of marriage, the administration suggests.

That principle would justify the government in submitting similar amicus briefs in the pending federal marriage cases brought against the civil union approach in Hawaii and Nevada, where district courts have granted summary judgment against the plaintiffs. Both cases are on appeal to the Ninth Circuit. (Illinois faces a similar challenge, but that case was brought in state court under the Illinois Constitution. The substantive legal arguments, however, are no different.)

The DOJ brief, in fact, lists those states with civil union laws and then argues, “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.” Without citing the precedent, the administration is applying the logic used by the Connecticut Supreme Court when it ruled that civil unions there violated state equal protection and required the state to open up marriage to same-sex couples.

The government’s brief does not overtly advocate that same-sex couples have a federal constitutional right to marry as such. Rather, it asserts that if a state has resolved the policy issues in favor of providing the rights, benefits, and responsibilities of marriage to same-sex couples, it cannot then deny them the right to marry. And, focusing on the circumstances of the parties in this case –– as a brief should –– it argues that the circumstances in California, with the vote to amend the State Constitution to end same-sex marriages, violates equal protection since the arguments advanced in support of Prop 8 cannot survive heightened scrutiny in justifying the resulting unequal treatment of same-sex couples.

When heightened scrutiny is applied, Prop 8’s defenders are theoretically limited to the justifications presented to voters during the 2008 campaign, not the “new” arguments thought up by their attorneys for this lawsuit. But DOJ argues that even these post facto arguments –– particularly the “accidental procreation” nonsense that posits that the purpose of marriage is to steer heterosexual reproduction into stable family structures –– fail under the most lenient level of judicial scrutiny, where it need only be shown that there is some rational reason for its enactment. Prop 8 did nothing to change existing California family law, under which same-sex domestic partners have all the parental rights and responsibilities of married couples. And, it does nothing to curb the risks of “irresponsible” procreation by unmarried by heterosexuals.

As other briefs in support of the plaintiff couples have pointed out, the government notes that in a heightened scrutiny equal protection case, the question is whether Prop 8’s defenders have made valid arguments to justify excluding same-sex couples from marrying, not whether the government might have some reason to encourage different-sex couples to channel their procreative activities into marriage. There is simply no logical connection between the two issues.

This is a subtly constructed brief. The arguments it makes could well support a challenge against a state Defense of Marriage Act or the failure of a state to provide marriage –– whether or not the state has adopted civil unions –– by arguing against the sorts of constitutional justifications advanced to defend Prop 8. Here, however, those arguments are articulated specifically to present a consistent approach to the position taken by the administration in the DOMA case and to knock the props out from under Prop 8.

Though similar in some respects to the arguments made by AFER and by the City of San Francisco, DOJ's brief provides the Supreme Court with a plausible analytical route for striking down Prop 8 without immediately invalidating all state DOMA laws and constitutional amendments.

However, the analysis the administration provides on the heightened scrutiny question and in challenging arguments made in denying marriage to same-sex couples are precisely the fodder needed to make a broader case for the right of same-sex couples to marry.

If a majority of the Supreme Court agrees with the explicitly sweeping argument AFER made in its brief last week, we could have same-sex marriage nationwide immediately, but that seems an unlikely outcome. If, instead, the high court hews to the government’s argument in this amicus brief, it would strike down Prop 8, perhaps in an opinion that would send a clear signal to the Ninth Circuit to rule for same-sex marriage in the Hawaii and Nevada cases as well. It could also provide guidance to all lower federal courts on the likely outcome of constitutional challenges against other states with civil union laws and perhaps even against a DOMA state.

In comments to the press on March 1, President Barack Obama indicated that the administration was responding to the specifics of the Prop 8 case with arguments that have more general application.

“The solicitor general in his institutional role going before the Supreme Court is obliged to answer the specific question before them.” he said. “And the specific question presented before the Court right now is whether Prop 8 and the California law is unconstitutional.”

Asked why DOJ did not simply argue for a constitutional right to same-sex marriage, the president responded, “What we’ve done is we’ve put forward a basic principle, which is –– which applies to all equal protection cases. Whenever a particular group is being discriminated against, the court asks the question, what’s the rationale for this –– and it better be a good reason. And if you don't have a good reason, we’re going to strike it down. And what we’ve said is, is that same-sex couples are a group, a class that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it’s doing it. And if the state doesn't have a good reason, it should be struck down. That's the core principle as applied to this case. Now, the court may decide that if it doesn't apply in this case, it probably can't apply in any case. There’s no good reason for it. If I were on the court, that would probably be the view that I’d put forward.”

A victory on Prop 8 might not be as sweeping as the 2003 ruling in Lawrence v. Texas that struck down sodomy laws nationwide, but it could potentially have the same impact in the long run and also accelerate the trend toward enactment of marriage equality laws by state legislatures, where efforts are now pending in several states.