February 19, 2013

As you regulars know, I’m hoping that the Obama Justice Department will file a legal brief related to the Supreme Court’s pending hearing of the case involving Proposition 8, one detailing the administration’s view that Prop 8 is unconstitutional. This would send a strong message that the culture is changing, and could help lead to a sweeping ruling from the Court, one that will effectively put state laws prohibiting gay marriage on the path to extinction.

Time is running out: Briefs are due in the case on February 28th. The Justice Department is not saying what it will do, which has some gay rights advocates a bit nervous.

To understand why this is such a big deal, check out the piece gay advocate Richard Socarides has written for the New Yorker. As he notes, there are three possible responses for the Justice Department here, presuming it files a brief at all. The first two are limited responses that would essentially mean gay marriage returns to California but would not have meaningful national implications. Socarides expects the third, much broader response, in which the government would make an aggressive case in favor of marriage equality, by arguing (as it has in the case of the Defense of Marriage Act) that sexual orientation classifications must be subjected to “heightened scrutiny.” Socarides:

That argument, I believe, is one the Justice Department will boldly make to the U.S. Supreme Court in the Proposition 8 case. It is most in tune with the President’s view, articulated in his Inaugural Address, that “our journey is not complete until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well.” And if accepted by five or more Justices, it will lead inexorably to the end of all anti-gay-marriage laws across the country within the few short years it will take for individuals in those states to challenge them specifically based on this new precedent.

Yes. I am sympathetic to the argument made by some administration defenders that it may not be the greatest idea to be pressuring Obama on this. After all, if gay marriage advocates insist a brief would give a major boost to their cause, and the administration doesn’t go through with it, wouldn’t that ultimately undermine their case? And wouldn’t Obama’s impressive gay rights record stand, whether or not Justice submits a brief?

Yes, but there is no clear way I can see for the administration not to submit a brief aggressively arguing against Prop 8 without undermining the historical words Obama spoke in the Inaugural. I don’t believe Obama included the words “under the law,” which were delivered as Supreme Court justices looked on, by accident. It’s hard to square Obama’s formulation — “if we are truly created equal, then surely the love we commit to one another must be equal as well” — with the idea that the states should still have the power to prevent gays and lesbians from marrying or that gay Americans don’t have a fundamental right to express that love just as heterosexual couples do.

A new poll released by the Dem firm Anzalone Liszt, taken for pro-marriage groups, finds that three quarters of Americans believe the ability to marry the person you love — for gays and lesbians included — is a Constitutional right. Obama has unquestionably done a good deal to encourage the culture to move in the direction it has. Declaring the administration’s view that Prop 8 is unconstitutional would represent a very powerful follow-through on Obama’s own history-making Inaugural nod towards the need to complete the project of extending full civil rights to gay and lesbian Americans — which the President has admirably advanced on a number of fronts. And if Obama helped put state laws outlawing gay marriage on the road to extinction, it would only make his legacy on this issue all the more historic.

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