Anyone surprised by the Obama administration amicus brief calling on the Supreme Court to strike down Proposition 8, the California constitutional ban on same-sex marriage, hasn’t been paying attention to the president. Not only have President Obama’s personal views on marriage equality “evolved,” so, too, have his public expressions of support for it.
On May 9, the day after voters in North Carolina last year approved a state constitutional amendment banning gay marriage, Obama sat with Robin Roberts of ABC News to announce his support for the right of same-sex couples to marry. Yeah, yeah, Vice President Biden got out ahead of the president on this one. Still, it was something Obama was already going to do.
Then, at his second inaugural, Obama declared, “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.” It was a bold pronouncement on its own. But with the Supreme Court justices who will hear two same-sex marriage cases next month seated nearby, the president’s words were all the more powerful.
Now comes Thursday’s filing of an amicus brief in Hollingsworth v. Perry calling for the court to invalidate Proposition 8 because it “fails heightened scrutiny” and therefore violates the equal protection clause of the Fourteenth Amendment. For the uninitiated (I was there once), heightened scrutiny is legalese that means, in this case, that laws targeting gay men and lesbians should be reviewed more rigorously in discrimination cases.
The arguments in the brief echo those in the administration’s brief in Windsor v. the United States filed last Friday. That is the case of Edith Windsor, who had to pay more than $360,000 in federal estate taxes because the so-called Defense of Marriage Act (DOMA) prevents the Internal Revenue Service from recognizing her as a surviving spouse because she was legally married to another woman. That brief is also an amplification of a letter Attorney General Eric Holder sent to House Speaker John Boehner two years ago this month informing him that the administration believed DOMA to be unconstitutional and would no longer defend the discriminatory statute in court.
Now, keep something in mind. Unlike the Windsor case, the administration is not a party to the Proposition 8 case. So it was under no legal obligation to file anything with the court. As a result, many treated the countdown to yesterday’s filing as if it were some sort of doomsday clock ticking toward Obama’s ultimate infidelity to the cause of marriage equality. That the administration did call on the court to allow same-sex couples in California to marry was simply the president being true to the words he spoke on the west front of the Capitol on Jan. 21.
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