In an interview with an ABC News affiliate in San Francisco, President Obama made his most extensive comments yet on the question of whether his administration will weigh in with a friend-of-the-court brief on the Proposition 8 case set to be heard by the Supreme Court. He said:
“The Solicitor General is still looking at this. I have to make sure that I’m not interjecting myself too much into this process, particularly when we’re not a party to the case. I can tell you, though, obviously, my personal view, which is that I think that same-sex couples should have the same rights and be treated like everybody else. And that’s something I feel very strongly about and my administration is acting on wherever we can.”
This is more encouraging than not. It shows that the administration is very actively considering taking this step. What’s more, Obama reiterated the view, spelled out in his Inaugural Address, that full equality before the law is the ultimate goal of his administration, stressed that he feels “very strongly” about it, and underscored that his administration is acting to bring this about “wherever we can.” Obviously, filing a brief in the Prop 8 case — one that forcefully articulates the view that Prop 8 is unconstitutional — falls into that category. It is something his administration can, in fact, do. And since the Court gives weight to the views of Solicitors General, doing it could help bring about a broad Supreme Court ruling that would put state laws banning gay marriage on the road to extinction — bringing us closer to the full equality that Obama himself articulated as a paramount moral goal.
At the same time, by saying that this is something his Solicitor General is examining, even as he noted the need to avoid interjecting himself into the case, Obama was also signaling that this process is unfolding as it’s supposed to: With the Solicitor General making this determination independently, on the merits. An optimistic reading of this is that it could give the Solicitor General the breathing room he needs to expound on the administration’s views of Prop 8 even if gay marriage opponents will inevitably cast such a move as political.
To reiterate, it’s unclear to me how a decision not to submit such a brief wouldn’t undermine the historic words Obama spoke during his Inaugural address. Obama said that gays deserve full equality “under the law,” and that “if we are truly created equal, then surely the love we commit to one another must be equal as well.” It would be hard to square that view with the failure to weigh in against the ideas that states should still have the power to prevent gays and lesbians from marrying and that states should still be able to deny gay Americans the fundamental right to express that love just as heterosexual couples do.
So it’s good to see that his administration is very actively considering wading into the case. Let’s hope it makes the right decision.