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U.S. President Barack Obama speaks during swearing-in ceremonies on the West front of the U.S Capitol in Washington, January 21, 2013.   REUTERS/Kevin Lamarque (UNITED STATES  - Tags: POLITICS)
Obama's inaugural address.
President Obama has 24 hours left to file a brief in the upcoming Supreme Court hearing deciding whether California's Prop 8 ban on gay marriage is constitutional. The case will be heard next month, and the deadline for filing friend-of-the-court briefs is Thursday, Feb. 28. Last week, the White House has already filed a brief recommending that the Court uphold a U.S. federal appeals court ruling that declared DOMA unconstitutional, but it still hasn't acted on Prop 8.

Why, precisely, isn't clear. As Aravosis argues, he'd be joining more than 60 national corporations, including Apple, Alcoa, Facebook, eBay, Intel and Morgan Stanley, and more than 100 Republican officials from around the country. The lawyer challenging Prop 8, Ted Olsen, has said a brief from the White House would have “great effect.” Gay rights advocates agree, and argue that there's nothing for Obama to lose in supporting the challenge.

"What's the downside? Everybody knows he is an advocate for gay marriage," said Richard Socarides, who was a special assistant to President Bill Clinton and his liaison with the gay and lesbian community. [...]

But the president has remained silent on the legal arguments over a state's authority to ban same-sex marriage, even after his declaration a year ago that—after years of "evolving"—he supports the rights of gays and lesbians to wed. In the same interview, he said the issue should be left up to the states, a position he has appeared to move away from in more recent comments.

Obama added to the anticipation in an interview last week with KGO-TV. After noting that Solicitor General Donald Verrilli, the Justice Department's top Supreme Court litigator, "is still looking into" a position on Prop. 8, he said that his personal view is that "same-sex couples should have the same rights and be treated like everybody else."

One argument says that a White House brief on the issue either wouldn't have much weight with the Supreme Court, or that, as a story in the Wall Street Journal posits, that "taking such an expansive view in legal briefs could unnerve some justices in the Supreme Court's conservative wing." Additionally, the brief filed against DOMA "focuses on respecting the states' traditional authority over family law." A brief filed in the Prop 8 case would have to square that argument that the states have authority. According to the WSJ, a brief has been drafted, and now President Obama has to make the final decision to file it.

The president's words in his inaugural address, "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law," should be his ultimate guide in making that decision.

Originally posted to Joan McCarter on Wed Feb 27, 2013 at 10:06 AM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  Tip Jar (16+ / 0-)

    "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning." —Warren Buffett

    by Joan McCarter on Wed Feb 27, 2013 at 10:06:17 AM PST

  •  I for one don't buy (8+ / 0-)

    the argument that the administration's position on DOMA means that a position against Prop 8 would be inconsistent.

    The administration expressly fought against Massachusetts' claim that the federal government lacks power under the Tenth Amendment to pass a law defining  marriage. They said Congress can define marriage, but the definition has to be valid under equal protection.

    That's the exact same argument against Prop 8. No one says a state can't regulate marriage. They just can't exclude one set of couples based on an arbitrary reason.

    I am proud to be an Editor at Courage Campaign Institute's EqualityOnTrial.com
    @indiemcemopants on Twitter

    by Scottie Thomaston on Wed Feb 27, 2013 at 10:18:35 AM PST

  •  Not sure we need a brief from DOJ on Prop 8 (5+ / 0-)
    Recommended by:
    sfbob, HeyMikey, bythesea, wader, terjeanderson

    If the administration knows that the reason they took it is to slap the 9th Circuit for asking the California Supreme Court for their recommendation on standing, it's unnecessary, and Prop 8 will be just as dead without the brief as it would be with it.  I'm expecting a ruling on Prop 8 that's even MORE limited than the 9th Circuit ruling was.

    -7.75, -8.10; . . . Seneca Falls, Selma and Stonewall (h/t cooper888)

    by Dave in Northridge on Wed Feb 27, 2013 at 10:58:55 AM PST

    •  I go back and forth (6+ / 0-)

      I've noted already that I have wondered whether the Supreme Court granted cert on Prop 8 in order to make a definitive ruling on the standing issue rather than on the marriage issue, or if they buy the notion that the state's determination grants ballot proponents Article III standing and are looking for an opportunity to say so as well as to rule on the merits of the case.

      It seems to me that if the Court were to agree with the arguments, made on the DOMA case as well as on Prop 8, that sexual orientation represents a suspect class and that laws which classify based on sexual orientation must pass muster under intermediate scrutiny, then it would seem as though that ruling would itself affect Prop 8. But it isn't clear how far they'd be willing to take it.

      Overall I suspect that at the federal level, the Prop 8 case is a sideshow compared to DOMA. I strongly suspect that the court intends to overturn DOMA; the devil will be in the details.

  •  It's a state thing. He won't do it. (1+ / 0-)
    Recommended by:
    craigkg

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Wed Feb 27, 2013 at 04:05:28 PM PST

  •  He's busy... (4+ / 0-)
    Recommended by:
    bythesea, JML9999, wader, FistJab

    authorizing a drone strike on Bob Woodward (according to Woodward).

  •  Obama always says a lot (1+ / 0-)
    Recommended by:
    craigkg

    but not a lot actually happens.

    We've been doing this for several years now.  Don't expect much.

    Be of good comfort, Master Ridley, and play the man; we shall this day light such a candle by God's grace in England as shall never be put out.

    by Bollox Ref on Wed Feb 27, 2013 at 06:18:52 PM PST

  •  Rare indeed is the lawyer (0+ / 0-)

    who files an appellate brief before the day it is due.

    "Save it for 2050." -- Mark Penn (on Obama's electability)

    by throughaglassdarkly on Wed Feb 27, 2013 at 06:34:51 PM PST

    •  This wouldn't be an appellate brief (1+ / 0-)
      Recommended by:
      terjeanderson

      This would be a brief of amicus curiae. The government is not a party to the case, which has been their justification heretofore for not filing a brief. Yes, they can still file on the last day, but generally if the government is going to file, there will be notice. That has not been the case here.

      "Lesbian and gay people are a permanent part of the American workforce, who currently have no protection from the arbitrary abuse of their rights on the job." --Coretta Scott King

      by craigkg on Wed Feb 27, 2013 at 06:56:32 PM PST

      [ Parent ]

  •  I doubt they will file one (1+ / 0-)
    Recommended by:
    Dracowyrm

    Filing an amicus brief in the Prop 8 case will pretty much require Obama to say whether he thinks the constitutional right to marry includes the right to marry a person of the same sex, a question they have deflected over and over. Most people assumed he was on board with the "right to marry" in his big May 2012 announcement. He wasn't if you examine the language. He merely said gays should be able to marry, but that it was a decision for the states to decide. So instead of channelling segregationist rhetoric supporting civil unions, he switched to the equally discredited states' rights rhetoric. His statement was functionally equivalent to Strom Thurmond saying "I think Negros should be able to marry whites, but if South Carolina or Virginia chose not to allow it, they can."

    Obama is too big a coward to put his opinion on the question out there. In the past he's used the excuse that he shouldn't weigh in on the question because he's not a Supreme Court Justice (even though he had no qualms about saying Obamacare was constitutional before the Justices ruled). I think a big part of the fear is that he rightly suspects that the Court will never actually reach the question of whether the constitutional right to marry includes same sex couples and therefore doesn't want to take a stand on a question that won't even be answered.

    As SFBob surmised above, I too very much doubt they will rule upon the merits. Several of the Justices have made it their life's work to narrow the scope of standing to such low levels as to obviate any accountability or liability of government entities or corporations. Arizonans for Official English didn't provide them all the necessary components to slash standing the way they wanted. The Prop 8 case does. They will rule the Prop 8 proponents never had standing to appeal, vacating the 9th Circuit's ruling and reinstating Judge Walker's district court opinion as controlling without ever deciding the merits of the Prop 8 case and making it impossible for there ever to be an appeal of the case that would require them to make such a ruling (since it is doubtful Kamela Harris or Jerry Brown would subsequently appeal Jude Walker's ruling). This isn't that bad from the California standpoint. Prop 8 goes down and Walker's masterful and sweeping ruling is binding in California, but no where else does it establish precedent, firewalling it from the rest of the country.

    I don't think the standing issue will be quite a clear in Windsor, but then the government pretty much has to respond in that case as a party even though they aren't defending the law. But the DOMA case doesn't hinge upon the constitutional right to marry. If it goes to the merits, it will be decided (I suspect) on the equal protection component of the 5th Amendment's Due Process Clause, but I will not be surprised if they punt on that case too saying that the House doesn't have standing unto itself to defend DOMA, but rather the defense would require both houses of Congress to appeal. I think it is less likely here since they did not deny certiorari to the other DOMA cases, but held them meaning they are more likely to rule upon the merits and then remand the other cases for subsequent review by the Courts of Appeal based on the DOMA ruling in Windsor.

    "Lesbian and gay people are a permanent part of the American workforce, who currently have no protection from the arbitrary abuse of their rights on the job." --Coretta Scott King

    by craigkg on Wed Feb 27, 2013 at 06:52:45 PM PST

  •  I don't think he should do it. (1+ / 0-)
    Recommended by:
    terjeanderson

    Turning this decision into one that either supports or opposes Obama is a tactical mistake.

    Contradicting the Administration's position that marriage is defined by states and should stay that way, while the federal government respects ALL such definitions, is consistent with the DOMA position.

    Bigfooting litigation on a state voter initiative is a bad precedent, period.

    I expect that Perry will be decided narrowly, probably on standing and/or the stripping away of rights already secured.

    DOMA is the main act. And as that is an Administration initiative, they should keep their powder dry for it, not appear they are trying to dictate to the Court on All Things Gay.

    Have a flagon and discuss the news of the day at the sign of the Green Dragon, or hear me roar on Twitter @MarkGreenFuture

    by Dracowyrm on Wed Feb 27, 2013 at 07:43:15 PM PST

    •  Agreed (1+ / 0-)
      Recommended by:
      terjeanderson

      Remember that the Prop 8 decisions from the lower courts are incredibly narrow, and even if the Supreme Court comes down on our side, the decision will have no practical impact outside of this one law (Prop 8) in this one state (California).
      As I understand it, the decision essentially says that because same-sex and opposite-sex couples had the same rights to marriage for several months (after the California Supreme Court ruled for marriage equality), and Prop 8 was written solely to remove the word "marriage" from same-sex unions (because California already had civil unions that are functionally equivalent to marriage), that it's impossible to form any other conclusion but that the whole point of the proposition was discriminatory.
      Unless some other state opens the door for same-sex marriage, and then leaves those same rights in place but changes the wording to something other than "marriage," the Prop 8 case as decided in the lower courts wouldn't apply at all.
      That's not to say that the USSC couldn't reach a wider decision; they've been doing that quite a bit when it suits them the past couple terms. But as Dracowyrm says, "DOMA is the main act."

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