February 28, 2013

As expected, the Obama administration has submitted a friend of the court brief in the case challenging Proposition 8 before the Supreme Court. Just as gay rights advocates had hoped, Obama’s Solicitor General has made a sweeping case against Proposition 8 as unconstitutional, which is a bold move and makes it more likely that the Supreme Court will strike down the law with a similarly sweeping argument. This in turn could set a precedent for challenging the constitutionality of other state laws banning gay marriage — potentially leading to full equality across the country.

In short, in this brief, the United States government has put the force of a fully fleshed out legal argument behind Obama’s historic words during his Inaugural Address: “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.”

The key to the brief is that it makes two arguments. The first is that it agrees with the ruling of a lower court — which found Prop 8 unconstitutional — that challenges to the constitutionality of such laws should require that they are subjected to “heightened scrutiny.” That means the court should hold their rationale for discriminating to an extremely high standard, and strike them down if they fail to have a credible justification. The brief does that here, in a reference to previous Supreme Court ruling in cases involving challenges to discriminatory laws:

[C]lassifications based on sexual orientation call for application of heightened scrutiny. Each of the four considerations identified by this Court supports that conclusion: (1) gay and lesbian people have suffered a significant history of discrimination in this country; (2) sexual orientation generally bears no relation to ability to perform or contribute to society; (3) discrimination against gay and lesbian people is based on an immutable or distinguishing characteristic that defines them as a group; and (4) notwithstanding certain progress, gay and lesbian people — as Proposition 8 itself underscores — are a minority group with limited power to protect themselves from adverse outcomes in the political process. [...]

Because a classification based on sexual orientation calls for the application of heightened scrutiny, petitioners must establish that Proposition 8, at a minimum, is “substantially related to an important governmental objective.”

The second key to the brief is that it argues that when you apply “heightened scrutiny” to Prop 8, it is found to violate the equal protection clause of the U.S. Constitution.

What this means is that the government, while focusing its brief on Prop 8 itself, has, for all practical purposes, asked the Supreme Court to set a precedent that can be applied to all state laws banning gay marriage — the arguments that these laws must survive “heightened scrutiny,” and that they violate the Constitution.

This is exactly what the lawyers arguing the case against Prop 8 had hoped for. Theodore Boutrous, a lawyer who is arguing for the plaintiffs along with Ted Olsen, emails me this:

“This is a powerful brief by the United States placing the full weight of its authority in favor of equality for all Americans. This is an important day in this nation’s history. If the Court agrees with the United States that ‘heightened scrutiny’ applies, that is a clear path to marriage equality across the United States, because marriage bans in other states cannot satisfy that standard, either.”

Because Supreme Court justices give weight to the opinion of solicitors general, this makes it more likely — though it certainly doesn’t assure this — that the Court will adopt an equally sweeping ruling. It sets forth a legal view that comports with Obama’s view that “the love we commit to one another” should be equal before the law. It sends a strong signal that the administration believes the culture is ready for full equality for gay and lesbian Americans. If the Court responds in kind, it will give gay advocates a powerful weapon to challenge other state laws around the country banning gay marriage, and they’d likely be toppled as unconstitutional — one by one. This could truly help put this persistent relic of legalized discrimination on the road to extinction.

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