Julian Moore
National Beat Reporter
The Department of Justice offered the federal government’s first legal support for the right to gay marriage last week in an amicus brief to the Supreme Court. The document, which was crafted in part by President Obama himself, came in response to two critical marriage equality cases before the court. California’s controversial Proposition 8, which in 2008 explicitly banned gay marriages anywhere in the state, and the 1996 Defense of Marriage Act which defines marriage as the legal union of one man and one woman for federal and inter-state recognition purposes, are both under review by the court.
The federal government’s reasoning in both cases centers on the fact that California and seven other states with laws similarly prohibiting gay marriage already extends all the rights and responsibilities of marriage without naming it such. United States Solicitor General Donald Verrilli, the government’s top lawyer in Supreme Court cases, noted that these circumstances “particularly undermine the justifications for Proposition 8,” according to the brief. The state of California has also submitted a brief calling on the court to uphold the decision of 9th Circuit Court of Appeals, which found Proposition 8 to be in violation of the Equal Protection Clause of the 14th Amendment.
According to the SCOTUS blog, the brief outlined what is known as the “8-state solution”—states that offer all the same rights bestowed by marriage to gay couples must allow them to marry, as they would otherwise favor heterosexual couples.
Over the past two years, Obama and the Department of Justice have taken numerous steps to clarify the federal government’s legal position on gay marriage. In late Feb. 2011, Attorney General Eric Holder announced that the federal government would no longer defend the Defense of Marriage Act (DOMA) from legal challenges.
“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” said Holder in a statement. President Obama then expressed personal support for marriage equality in an interview last May, marking the first time a United States President had made such an endorsement while in office.
While the government’s far-reaching opinion calls on the court to carefully re-examine both DOMA and Proposition 8, the document specifies that gay rights should be decided by the states. Obama was sure to qualify this legal position with his personal sentiments again last week, saying that while he believes any gay marriage ban should be banned across the nation, he is “not a judge,” but that “the basic principle, though, is let’s treat everybody fairly. Let’s treat everybody equally.”
The government’s brief was submitted among dozens of others from civil rights groups, law organizations, and the state of California itself in support of striking down both Proposition 8 and DOMA. Any federal, state, or local government is allowed to submit an amicus curiae brief without seeking consent from either party. The briefs are rare, but allow the president and other executive officials to weigh in with an official legal position on politically sensitive cases.
Also joining in the amicus brief parade was a group of corporations including Google, Apple, Starbucks, and Facebook, which stated that DOMA was hurting their businesses. According to its court filing, the group argued that the federal ban on gay marriage “requires that employers treat one employee differently from another, when each is married, and each marriage is equally lawful. DOMA thus impairs employer/employee relations and other business interests.”
Both cases are set to be heard by the Supreme Court in the coming weeks.
Photo courtesy of Gwenael Pinaser