The spirit of Biden’s comment was evident, even if it wasn’t entirely clear from the words themselves whether they represented a new policy position or departure from the administration’s stated worldview. Before the taped interview had even aired, Biden’s statement created a furor in the White House. Obama had privately decided he would commit to a similar shift, and advisers had been working for months to calibrate the time, place and language of the announcement. Biden’s statement upended those plans, and within 72 hours of the airing on NBC, Obama had summoned a rival network for an interview to declare he had completed his “evolution” on the matter. Biden admirers today cite the episode as emblematic of his virtues: sincere and kindhearted with a knack for unmeasured, improvised speech that can inspire as much as it infuriates.
There were no cameras around to document Sen. Kamala D. Harris’s biggest contribution to that same movement. On May 3, 2011, just four months into her first term as California’s attorney general, her office submitted a brief in the ongoing litigation over the constitutionality of Proposition 8, the ban on same-sex marriage enacted by voters via a 2008 referendum. Among other things, Harris’s brief confirmed what she had said as a candidate and as attorney general-elect: Her office would not defend Proposition 8, by then a matter of state law written into the California Constitution, in court. This was not a novel stance — her predecessor, Jerry Brown, had refused to defend the law, as had Gov. Arnold Schwarzenegger (R) — but Harris’s inaction was essential in delivering Californians same-sex marriage rights for good. Two years later, the Supreme Court let stand a lower-court decision ruling Proposition 8 unconstitutional because no state officials had stepped up to defend it.
Over the long arcs of their careers, neither Biden nor Harris was a pioneer in the cause of equal marriage rights, but both played crucial roles in the endgame as the question moved toward the Supreme Court in the past decade. Their respective episodes illustrate two very different roles for elected officials to play in pushing along a social movement: one using rhetoric and argument to persuade other political elites and ultimately public opinion, the other asserting her power as a legal officer to take — or not to take — action. In retrospect, it was the latter, especially state attorneys general such as Harris operating away from media scrutiny, that may have been more important in making same-sex marriage the law of the land. Without such inaction by constitutional officers, the most significant civil rights breakthrough of the past generation almost certainly would not have come about the way it did.
Biden’s remarks did set off an awkward week in which Obama was forced by an underling’s indiscretion into articulating a change of heart on a touchy topic, but it was not even the most significant policy reversal of the administration when it came to same-sex marriage. The previous February, Attorney General Eric Holder had announced, in a letter sent with Obama’s prior approval, that the department would no longer defend the constitutionality of the Defense of Marriage Act. (The administration continued to enforce it, however.) The decision had been forced by a quirk of the federal judiciary’s organization — two neighboring circuits had adopted different standards of review for gay rights cases, and the Justice Department had to choose which it would adopt — but a White House long dogged by the marriage issue leaped at the opportunity it offered. Both political and legal advisers were pleasantly surprised with how little controversy the move generated, a major factor in convincing Obama that there would be little downside to announcing a broader shift on the marriage issue during an election year.
There were many critics of Obama’s decision to stop defending the law in court, including some with senior positions in his own Justice Department. In general, the practice represents a blurring of the lines between the legal and the political spheres, and it presents a dangerous avenue for the executive branch to marginalize the legislative branch by refusing to shield its laws from challenge. (Congressional Republicans hired their own attorneys to defend the Defense of Marriage Act in court after the Obama administration chose not to.) Some legal scholars describe it as a form of “popular constitutionalism,” celebrating the role that the people play in the ongoing process of constitutional interpretation.
Now, as Biden and Harris lay out a vision for what they would do in the White House, voters ought to expand their view of the powers that belong to executive-branch officials beyond just enacting new laws and enforcing old ones.
While decisions like Harris’s not to defend existing laws are unusual, state executive officers have been shaping the arc of marriage litigation since its contemporary emergence in the 1990s. In those that decade where plaintiffs sued for the right to marry, as in Hawaii and Vermont, political considerations shaped which arguments attorneys general made to justify the status quo — often disappointing religious conservatives who thought state officials neglected stronger rationales for fear of appearing homophobic. After the Massachusetts Supreme Judicial Court in November 2003 became the first to order full marriage rights for same-sex couples, Republican Gov. Mitt Romney’s efforts to delay its implementation were foiled by Attorney General Tom Reilly, a Democrat, who blocked the governor by refusing to make one of his office’s lawyers available for that purpose.
As gay rights advocates built the infrastructure for a sustained campaign to win marriage nationwide, developing relationships with state officials became a priority. The circle of donors who funded the strategy, organized by Colorado software mogul Tim Gill, emerged as reliable benefactors of the Democratic Attorneys General Association. Beyond the reach of federal or state limits on contributions to candidates or party committees, the association’s regular meetings were one of the few places where it was perfectly legal for a lobbyist to spend unlimited amounts of money for access to elected officials or those who hoped to soon join their ranks. “You see telecom, oil, energy, banking, securities lawyers, trial lawyers,” Ted Trimpa, a lobbyist and Gill’s top political strategist, told me. “I’d look around the room, and the only social-justice people there would be us.”
Even in states that had yet to see litigation or legislation around marriage, the attorneys general became critical allies in the policymaking process. Rhode Island’s Patrick Lynch issued an advisory opinion that confirmed no state law prohibited couples in the state from traveling to Massachusetts to marry. In New York, then-Attorney General Eliot Spitzer enforced an opinion recognizing same-sex couples married in neighboring Massachusetts even though it would not have let them marry in New York. After Gov. Martin O’Malley (D) said he thought Maryland should do the same, Attorney General Douglas Gansler ordered state agencies to recognize out-of-state marriages — just days before they would become legal in the neighboring District of Columbia.
Among the early beneficiaries of Spitzer’s initiative were Manhattanites Edith Windsor and Thea Spyer, who were recognized as married at home even though they wed in Canada. It gave Windsor her grounds to sue the United States for the harm the Defense of Marriage Act inflicted upon her tax bill. Windsor’s case moved through the federal courts in parallel to one filed by Massachusetts Attorney General Martha Coakley, who argued that the commonwealth’s interests had been harmed just as much as some of its citizens’ when the Defense of Marriage Act refused to treat their marriages as equal under federal law.
Nowhere was the power of politicians to shape the path of litigation clearer than in California, where Obama’s associate White House counsel Kate Shaw observed that “at every juncture, developments in the law of same-sex marriage have involved questions of executive power.” In summer 2008, the state’s Supreme Court ordered that same-sex couples could marry, only to have voters end the practice by approving Proposition 8 that November. The law was challenged in state courts immediately after its passage, on a variety of grounds, and Brown — who, as attorney general, was responsible for supervising all legal matters involving the state — agreed with the plaintiffs that Proposition 8 was unconstitutional. Those suits failed, and when attorneys David Boies and Ted Olson moved the matter to federal court the next spring, they named Schwarzenegger and Brown as defendants. Both stepped aside as the Yes on 8 campaign’s sponsors defended its constitutionality.
After Judge Vaughn Walker ruled that Proposition 8 violated the Constitution’s due-process and equal-protection guarantees, neither Brown nor Schwarzenegger filed an appeal. “Although it is not every day that the Attorney General declines to defend a state law,” Brown’s office wrote in late 2010, “he may do so because his oath requires him [to] support the United States Constitution as the supreme law of the land.” Despite a request from the initiative’s sponsors, the California Supreme Court refused to compel the state’s executives to mount an appeal.
With her 2011 filing, Harris confirmed that she would not back an appeal either. She had come out against Proposition 8 during the campaign — the San Francisco district attorney’s face was placed prominently alongside Obama’s in literature that opponents of the referendum distributed to Black voters — but like Brown and Schwarzenegger, she proved more influential as a legal obstacle than as a political critic. Harris went further than either of them, arguing that the initiative’s sponsors, who had collected the signatures to qualify for the ballot and then ran the campaign in its favor, should not be allowed to defend the law in federal court either.
That helped frame the question that came before the U.S. Supreme Court in March 2013. Ultimately, the court ruled in Hollingsworth v. Perry that a ballot initiative’s sponsors cannot step in to defend a law if a state’s executive officials refuse to. Ruling on that narrow issue of standing permitted the justices to evade the broader, and more contentious, question of the constitutionality of state bans on same-sex marriage. (Two years later, the court struck down all such laws.)
By invalidating the appeal of the Yes on 8 sponsors, Walker’s lower-court ruling was allowed to stand, immediately returning legal same-sex marriage to California.
And afterward, Harris finally got her photo op. The attorney general officiated the wedding of plaintiffs Kris Perry and Sandy Stier, the state’s first since Proposition 8’s passage.