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.