The other is Proposition 8, which was passed by voters after the California Supreme Court recognized a right for same-sex unions under the state constitution. More than 18,000 couples were wed in the meantime.
A federal district court and the U.S. Court of Appeals for the 9th Circuit struck down the amendment.
While the DOMA case concerns couples who are already married, the Proposition 8 case offers the Supreme Court a chance to examine whether there is a constitutional right to marriage that cannot be denied by the states. But, as the administration’s brief indicated, there are more limited ways the court could rule.
Currently, the District, Maryland and eight other states allow same-sex marriages, while nearly all the rest forbid it.
Obama’s position on same-sex marriage is an evolving one, he has said. Although he opposed Proposition 8, he has never said he thought that the same-sex marriage issue should be decided nationally.
“I continue to believe,” he told ABC News last year when announcing his support of same-sex unions, “that this is an issue that is going to be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”
Those who are defending Proposition 8 say the state’s acceptance of domestic partnerships proves that voters were motivated by a desire to protect traditional marriage, not to discriminate against homosexuals.
But the administration said that domestic partnerships prove just the opposite. California has “recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages; they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death,” the brief stated.
It said a reluctance to change the “traditional” definition of marriage is not a defense.
“Marriage has changed in certain significant ways over time — such as the demise of coverture and the elimination of racial restrictions on marital partners — that could have been characterized as traditional or fundamental to the institution,” Verrilli wrote.
A purported interest in responsible procreation and child-rearing cannot justify Proposition 8, the brief stated, because California confers “full rights of parenting and child-rearing on same-sex couples.”
And the administration said the court should not agree with an argument that it must respect “the will of the people” to amend the state’s constitution and to overturn the California Supreme Court’s decision allowing same-sex marriage.