(Newsweek) (Newsweek)

President Obama was dubbed “The First Gay President” by Andrew Sullivan last May, after his public announcement that his “evolution” in support of marriage equality was complete. It was a controversial homage to a man who at that point had done more and said more in support of gay men, lesbians, bisexuals and transgender (LGBT) Americans than any sitting president ever.

Yesterday, the president burnished that image even further with a historic amicus brief calling on the Supreme Court to strike down Proposition 8, California’s constitutional ban on same-sex marriage.

As I noted in my previous post, Obama was under no legal obligation to file a friend-of-the-court brief in Hollingsworth v. Perry. But in doing so the president staked out a bold, if narrow, claim that Proposition 8 violates the Constitution’s right to equal protection. And he got there by reiterating his historic argument via Attorney General Eric Holder to Speaker John Boehner last year and in the brief filed last week in Windsor v. the United States, (a.k.a the DOMA case) that laws targeting gays and lesbians should be subject to “heightened scrutiny.”

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. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985). The object of California’s establishment of the legal relationship of domestic partnership is to grant committed same-sex couples rights equivalent to those accorded a married couple. But Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law, Strauss, 207 P.3d  at 72, and does not substantially further any important governmental interest. It thereby denies them equal protection under the law.

I called this a bold but narrow claim because the administration is only dealing with the question of whether marriage equality should be legal in California. Many activists wanted Obama to declare that there is a constitutional right to marry for same-sex couples in the United States. Ted Olson, the Republican co-counsel in the suit to invalidate Prop 8 with Democrat David Boise, was chief among them. But the brief put forward by the administration was the right thing to do.

When the Supreme Court announced it was hearing the Prop 8 case and the DOMA case, I urged “Supreme caution on Court and gay marriage.”  Basically, the Supremes could punt. In Prop 8,  the court could hand down a narrow ruling that only applies to California. In DOMA,  the court could rule that the federal government must view as married same-sex couples in states where marriage equality is legal. This would set up an untenable situation where, depending on where they lived, same-sex couples would be separate and unequal. Only those living in states where marriage equality is legal would be able to avail themselves of all the federal rights and benefits that come with marriage.
Yet, this less-than-ideal situation could be a blessing in disguise.

As I argued back in December, if the above-scenarios bear out, the court would have bought itself some time on the more sweeping question of the constitutional right for same-sex couples to marry. With voters in Maine, Maryland and Washington State legalizing marriage equality last November and the legislature in Illinois moving towards doing the same, the nation is doing on its own, albeit slowly, what many want the court to do in one ruling. A ruling that might do more harm than good right now.

“I think it would be a big risk for the Court to recognize a constitutional right to marry nationwide at this point,” Lanae Erickson Hatalsky of the centrist think tank Third Way told me in an e-mail. “It could spur serious backlash and actually take us off course of the incredible momentum we’ve been building in support for marriage.

“Either we could continue to change people’s hearts and minds and persuade them to come along with us, creating a relatively smooth journey towards equality,” she continued, “or we could force all states to allow marriages of gay couples right now — in which case I’m picturing National Guardsman escorting those couples to get married in Mississippi, with crowds throwing rocks at their heads.” This scenario could set back the cause of full equality for LGBT Americans and their families for decades.

By narrowly tailoring its amicus brief in the Prop 8 case to only apply to California, the administration wisely chose to support the incredible momentum already underway in the states rather than fuel the inevitable backlash that would come from a sweeping judicial ruling. And by doing so, Obama further showed why the “First Gay President” honorific bestowed upon him last year is even more apt today.

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