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Obama admin issues historic brief to SCOTUS…advocating (limited) marriage equality

The Obama admin does another half-measure, calling for marriage equality — in a limited scope. It won’t weigh in to clear the way for equality nationwide – punting to SCOTUS. Here is the fairly deflating news (if you’re in a state with a marriage amendment), or elating endorsement if you’re in a handful of states (Lyle Denniston at SCOTUSblog the brief is here):

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution.  What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married.  The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

The eight states that apparently would be covered by such a decision are: California (whose Proposition 8, which denies marriage to couples who already have all of the other marital benefits, would fall), Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

Beyond those eight, nine other states already recognize full marriage rights for same-sex couples.   Three have done so as a result of state court rulings (Connecticut, Iowa, and Massachusetts).  Five have done so by state legislatures’ passage of equality laws (Maryland, New Hampshire, New York, Vermont, and Washington), and one by voter-approved ballot measures (Maine).  The legislatively approved equality laws in Maryland and Washington were ratified last November by voters in statewide balloting.  Washington, D.C., also allows same-sex marriages.

The silver lining:

The administration brief did not take an explicit position on how its standard might apply to states that do not now provide civil unions or other broad marriage-like rights as the eight non-marriage states do.  But the logic of its constitutional test might, in fact, jeopardize same-sex marriage bans as a general proposition.

Attorney General Eric Holder issued the following statement today on the U.S. government’s filing in Hollingsworth v. Perry:

“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law.  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 Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

Some articles up now:

* Obama files brief on Prop 8 (Washington Blade, Chris Johnson)
* Obama Administration Urges Supreme Court To Strike Down California Anti-Gay Marriage Ban (Buzzfeed, Chris Geidner)
* Obama admin argues Prop 8 unconstitutional in Supreme Court brief (Equality on Trial, Scottie Thomaston)

Reactions are below the fold…

Rea Carey, Executive Director, National Gay and Lesbian Task Force:

“President Obama made history when he became the first sitting president to explicitly support the freedom to marry for same-sex couples. With these amicus briefs, he has backed his powerful words with concrete action. The nation’s high court will consider one of the most defining civil rights issues of our time when it hears the Prop. 8 and DOMA cases. It makes perfect sense that our country’s highest leader should weigh in and urge the court to affirm our Constitution’s promises of liberty, equality and human dignity. In doing so, the Obama administration is standing for all families and for fundamental American values.”

Evan Wolfson, founder and president of Freedom to Marry:

“In his inaugural address, President Obama spoke of the nation’s destination: liberty, equality, and inclusion for all. In its friend of the court brief filed today, the Justice Department provided the legal roadmap, affirming the constitutional freedom to marry and calling on the Supreme Court to uphold the Constitution’s command of equal protection under the law. It is time for the justices, like our president and the majority of Americans, to embrace the freedom to marry and get our country on the right side of history.”

Human Rights Campaign:

“President Obama and the Solicitor General have taken another historic step forward consistent with the great civil rights battles of our nation’s history,” said Human Rights Campaign President Chad Griffin, co-founder of the American Foundation for Equal Rights (AFER), which brought the challenge to Proposition 8. “The President has turned the inspirational words of his second inaugural address into concrete action by urging our nation’s highest court to put an end to discrimination against loving, committed gay and lesbian couples and their families.”

While the Justice Department has actively argued against the constitutionality of DOMA in court, this brief marks the first time the Obama administration has weighed in on the constitutionality of a state law barring marriage for same-sex couples. The Solicitor General’s brief joins dozens of amici supporting the Perry plaintiffs, including major businesses, prominent Republicans, faith groups, civil rights organizations, legal scholars, and many others.

“The straightforward proposition that our Constitution guarantees all Americans equal protection of the laws, including marriage laws, has always been central to our case,” added Griffin, who recruited the expert legal team of Theodore B. Olson and David Boies to argue the case. “It is enormously gratifying to know that today, that the President and U.S. Government are standing with us against marriage discrimination.”

Adam Umhoefer, executive director of the American Foundation for Equal Rights (AFER), the sole sponsor of the Perry case, issued the following statement:

“The brief filed by the Solicitor General is a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded. 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. 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.”

Rick Jacobs, founder and chair of the Courage Campaign:

“We applaud 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. Last November,  voters from Maine to Washington stood up for equality. Now it’s time for the Supreme Court to catch up with the American public. Discrimination and hatred have no place in a country founded on the principles of liberty, justice and equality.”

UPDATE: Added musings Fri AM — my above thoughts on this topic — obviously brief ones, since I’ve not been blogging about much of anything since-spine surgery — are a gut reaction from someone sitting in a state wholly dependent on a shaky SCOTUS that looks like it’s about to up-end the Voting Rights Act — again NC is now run by the Teapublicans because progressives were asleep at the wheel in 2010 and we’ll pay for it for at least another decade.

This week it would have been a relief to see the WH brief to be more declarative, but it is no surprise that it erred on not doing so. The dance around it is emotionally unsatisfying (yet again); stating that is simply my declaration of frustration that we’re left with “states rights” affirmed for one iota longer by this WH because it’s historically hideous. There is no surprise there. That doesn’t rain on the parade of the folks dancing in the aisles about the historic nature of the brief. There’s plenty of celebration going on throughout the Internets to offset my more muted response.

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Pam Spaulding

Pam Spaulding