January 28, 2013

Get this: Proponents of Proposition 8, the California law defining marriage as between a man and a woman, are now citing the words of President Obama to buttress their position.

As you’ve heard, there’s been some pressure on the Obama administration to file a “friend of the court” brief from the Obama Justice Department declaring its view is that Proposition 8 is unconstitutional. Obama has come out for gay marriage while claiming its legal status should be left to the states to decide. However, he has not said whether he believes Prop 8 crosses the line into unconstitutionality — a position that can coexist with believing the states should ultimately decide these questions. Some gay advocates would like to see this because they believe it will help push the Supreme Court to issue a broad ruling along those lines. The White House won’t say what it will do with regard to the case.

Opponents of gay marriage, however, are not being as reticent — they are directly declaring that Obama’s own words buttress their case that Prop 8 should be upheld. In their brief in the case of Hollingsworth v. Perry, the Prop 8 case that will be heard by the Court this spring, the petitioners cite two quotes from Obama. On page 27, they quote Obama acknowledging in an interview last year that many people “feel very strongly” about preserving the traditional definition of marriage because they “care about families.” And on page 60, they quote Obama disclaiming any desire to “nationalize the issue” of gay marriage — in effect claiming Obama as their ally in the argument that Prop 8 should not be struck down.

This is likely to prompt still more demands from gay advocates that the Obama Justice Department clarify its stance on the constitutionality of Prop 8. In one sense, this is unfair to the White House: Obama has in fact come out in favor of gay marriage. What’s more, you can argue that gay advocates are making a mistake pressuring the White House to submit a brief and suggesting that so doing would be very helpful to their case. After all, that risks setting up a potential blow to their case if the Justice Department decides against submitting a brief. The Constitutionality of Prop 8 doesn’t live or die based on what the Obama Justice Department says about it.

On the other hand, there is still a sufficient lack of clarity around Obama’s position on the constitutionality of Prop 8 to allow its proponents to cite his argument against “nationalizing” the gay marriage debate in their favor. It is unclear, at least to me, how this can be squared with Obama’s flat out declaration that gays must be treated equally “under the law,” and that we won’t have honored the spirit of American equality until the love gays commit to one another is “equal as well.” A brief in the Prop 8 case would close this loop once and for all. I don’t know if it would impact the outcome of the case or not — and perhaps the continued agitation for a brief could prove a strategic misstep — but even if it’s just for the purposes of clarity alone, I’d like to see a brief from the Obama administration.

Greg Sargent writes The Plum Line blog, a reported opinion blog with a liberal slant -- what you might call “opinionated reporting” from the left.