Tuesday, March 5, 2013

Thoughts on President Obama’s Justice Department Brief in Support of the Freedom to Marry

"President Obama now tops the list  of influential supporters who have
filed briefs opposing Proposition 8 at the Supreme Court."
Post by Mary L. Bonauto, GLAD Civil Rights Project Director

President Obama’s Justice Department joined the litigation efforts for the freedom to marry with their February 28 landmark filing of a “friend of the court” brief to the United States Supreme Court arguing that California’s Proposition 8 is an unconstitutional violation of the equal protection clause of the U.S. Constitution. 
As my colleague, GLAD Executive Director Lee Swislow, has said, the President’s support for the freedom of same-sex couples to express their love and commitment through marriage could not be more significant.

The Department of Justice brief addresses the constitutionality of Proposition 8 rather than the laws of other states that bar same-sex couples from marrying.   The question presented to the Supreme Court asks:  “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the· union of a man and a woman,” and the Department’s brief answers “YES.” 

While the brief specifically addresses why Proposition 8 is invalid, it clearly does so in ways that could affect the legal debate beyond California.

For example:

The Justice Department argues that laws distinguishing based on sexual orientation merit close judicial scrutiny because of “the greater danger that the [sexual orientation] classification results from impermissible prejudice or stereotypes.” 

While the Department first took this position in cases challenging the federal Defense of Marriage Act (DOMA), including GLAD’s two cases Gill v.  OPM and Pedersen v.  OPM [links], this is the first time they have done so in a case seeking the right to marry.   Most people agree that state laws denying government marriage licenses to same-sex couples would not survive such heightened scrutiny.
The Department’s brief calls attention to the fact that Proposition 8 took away marriage from gay and lesbian Californians, but left in place a registered domestic partnership system providing the same legal rights and responsibilities under a separate legal system just for same-sex couples.

The brief speaks powerfully to the fact that there are no justifications for recognizing that same-sex couples deserve such protections yet insisting they must be placed in a separate system.   While the brief does not address the law of the 7 other states that currently have registered domestic partnership or equivalent civil union laws, its arguments about the law of California strongly suggest what the administration’s position would be as to each of those other states.

Finally, even if the Supreme Court does not reach the issue of heightened scrutiny and applies rational basis review, the force and logic of the Department’s arguments show that there are no legally valid reasons for denying equal treatment under law to gay people and our families.   It handily refutes arguments about tradition, responsible procreation and child-rearing, caution, democratic self-governance and protecting children from being taught about marriage for same-sex couples in schools.   

The brief is built around two themes: that denying marriage to same-sex couples harms those couples; and that there is no greater public good accomplished by withholding marriage from same-sex couples.  This certainly provides a foundation for continued involvement from the administration, if need be, in years to come.

President Obama now tops the list - and uniquely so - of influential supporters including religious denominations, American businesses, Republicans, and civil and human rights groups – including GLAD  - who have filed briefs opposing Proposition 8 at the Supreme Court.

Oral argument in the Prop 8 case will take place on March 26.   The following day, the Court will hear argument in the case against DOMA, Windsor v.  United States.
You can find more information about the challenge to Prop 8 here, and about the challenge to DOMA here and here.

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