“The government seeks to vindicate the defining constitutional ideal of equal treatment under the law,” Attorney General Eric Holder said. “Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination.”
The brief marks the first time the administration has weighed in on the constitutionality of any state ban on gay marriage. Although it was aimed at the voter initiative passed in California in 2008, it put the administration squarely against other such prohibitions. It urged the court to subject the state’s ban to a difficult legal standard that no state prohibition is likely to meet.
In particular, the brief implicated the other states that, like California, allow domestic partnerships or civil unions: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.
“The designation of marriage ... confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match,” the Obama administration’s brief states.
“Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection.”
Theodore Boutrous, a partner in the law firm Gibson Dunn, which is representing the two same-sex couples who filed the case initially, said the administration’s arguments represent “a clear path to marriage equality across the United States.”
The court filing completes President Obama’s self-described evolution on gay marriage and puts his administration squarely on the side of gay rights groups and the nine states where same-sex marriage is legal.
The president opposed California’s ban, Proposition 8, during his 2008 campaign but refused to endorse gay marriage. He made that endorsement during last year’s campaign but said the issue should be decided by the states.
“President Obama and the solicitor general have taken another historic step forward, consistent with the great civil rights battles of our nation’s history,” said Human Rights Campaign President Chad Griffin, co-founder of the American Foundation for Equal Rights, which brought the challenge to Proposition 8.
Conservative groups criticized the decision to weigh in against the gay marriage ban, particularly since Obama once said it should be left to the states. Tony Perkins, president of the Family Research Council, said the president was “putting allegiance to extreme liberal social policies ahead of constitutional principle.”
The high court has reserved two days in late March to consider the California ban on gay marriage and the Defense of Marriage Act, which denies federal benefits to legally married same-sex couples. Both have been declared unconstitutional by lower courts, decisions which are being challenged by gay-marriage opponents.