Ted Olson urges Obama to file brief for Prop 8, DOMA cases at Supreme Court

Prop 8, DOMA Case is Turning into a “Thing” for the Administration

The issue of whether the Obama administration will file amicus briefs before the Supreme Court on the upcoming Defense of Marriage Act (DOMA) and Prop 8 challenge is quickly turning into “a thing.”

First there was Chris Johnson’s story in the Blade on Friday, in which super-lawyer Ted Olson urged the administration to file an amicus brief on behalf of the Prop 8 case heading to the Supreme Court in a few months:

Ted Olson, a co-counsel in the Prop 8 lawsuit, made the remarks during a conference call on Friday in response to a question from Politico’s Josh Gerstein. Olson said a friend-of-the-court brief from the Justice Department would have “great effect” in the effort to overturn Prop 8.

“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson said. “And I’m quite confident that if they did participate, they would support our position in this case because the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”

White House and DOJ Seemed to Duck the Question about Filing Prop 8, DOMA Briefs

The White House seemed to duck the question, while the Justice Department sounded downright snippy about it:

The Obama administration has thus far stayed out of the Prop 8 case. Asked in September by the Washington Blade whether the U.S. government would weigh in, White House Press Secretary Jay Carney had no comment and Nanda Chitre, a spokesperson for the Justice Department, said, “We are not a party to this litigation and would decline further comment.”

Oh, trust me Nanda, there’ll be further comment. This issue isn’t going away.  It’s actually just begun.  And it’s accelerating, quickly.

It’s Only Going to Get Worse

Why do I think so?  First off, Politico now has the story.  It’s no longer just those “crazy gays” talking about this.  It’s gone mainstream.  In one day.

GAY MARRIAGE, prop 8, doma

Gay marriage via Shutterstock

“There will be pressure for the Justice Department to weigh in on the Prop. 8 case,” said Richard Socarides, a longtime gay rights activist and White House adviser to President Bill Clinton.Socarides said that when Obama “evolved” in the direction of support for gay marriage earlier this year, he and his aides seemed eager to let some time pass before confronting the question of whether it was a right every American should be guaranteed.

“I think this federalizes the issue much more quickly than the White House would have liked and may force them to take a position earlier than they would have liked,” Socarides said.

“It’s a fascinating question,” said another prominent gay rights activist, who asked not to be named. “Will they be at the table and which side of the table will they be at?”

Splitting the Gay Marriage Baby in Half Isn’t Going to Work

Josh Gerstein explains a bit more:

The Obama administration made clear last year that it would no longer defend the Defense of Marriage Act, the 1996 law that denies federal benefits to same-sex married couples. Obama said he’d concluded that law was unconstitutional. It was the Justice Department that asked the Supreme Court to take a challenge to DOMA, hoping justices would agree to strike it down.

However, the federal government has never taken a stand on the other, potentially more significant case that the justices added to their calendar on Friday: the legal challenge to California’s ban on same-sex marriage, approved in 2008. In 2010, a district court judge struck down Proposition 8 as unconstitutional and found a broad federal right to same-sex marriage. In February, the U.S. Court of Appeals for the 9th Circuit also found the measure unconstitutional, but on narrower grounds.

Yes, well, that’s a fine description of the nuance of the case. And it’s something 99% of Americans will never consider, care about, nor understand.  To the rest of America:

“President Obama is for gay marriage.”

They don’t care, nor understand, that he’s for it in his heart and his head, but he’s not entirely sure about all the constitutional questions surrounding gay marriage, and even though he thinks part of DOMA is unconstitutional, he’s not sure about the other part, and more generally isn’t sure whether the Constitution guarantees gay couples the right to marry, even though he’s said that he opposes Prop 8.

And America will hear that explanation from the White House and the Justice Department, and they’ll conclude:

“President Obama is for gay marriage.”

Now, I can see why the administration doesn’t want to have to deal with this now.  There’s the so-called “fiscal cliff” talks, and they don’t want any “distractions” from their messaging on the budget talks.

Well.  Too bad.

The Prop 8, DOMA “Distraction” is Already Here

The distraction is already here.

And it’s only going to get louder if the administration doesn’t come out and say that they’re submitting amicus briefs against Prop 8 and DOMA.

And if they don’t come out and say it, people in the gay community will get ticked off (I predict the tick off has already begun as a result of the not-very-helpful answers the Blade got from the White House and Justice on Friday), and they’ll get even more ticked off every time the White House refers questions to the Justice Department, and every time the Justice Department gets snippy.  And the issue will grow louder, and gay voices will grow angrier, for the next three months, and steal the news cycle over and over again, causing the very distraction the administration didn’t want in the first place.

But dragging this decision out will also cause one more thing to happen: The impression that, in the end, the administration supported us because they were forced to, not because they wanted to.

Wouldn’t it be better to get out front of the issue, deal with it cleanly, now, and get credit for doing a good thing – the right thing?

With the fiscal cliff talks coming up, and progressives already getting mighty nervous about what’s on the table, the White House could use more, rather than fewer, progressive friends in the coming weeks and months.

Just do it.

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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44 Responses to “Ted Olson urges Obama to file brief for Prop 8, DOMA cases at Supreme Court”

  1. karmanot says:

    And when Gonzales looks good, John Asscroff looks absolutely fabulous.

  2. A reader in Colorado says:

    His real statement on the issue was mealy mouthed. It was taken to mean he was in favor of gay marriage, but he really didn’t offer anything new.

    Secondarily,the Obama administration mushiness on the subject was a thorn in his side well before Biden said what he said.

    And this administration does act to reduce its inconveniences.

  3. Thomas Hill says:

    Texas is having a problems with school districts and cities that have offered partnership benefits in order to hire people. The Texas AG has been asked to render an opinion on the legality of what these jurisdictions are doing.

  4. Don Chandler says:

    well, the first lady spoke very favorably on our behalf. And as you well know, these matters are well scripted. He really has to be on our side…he might be working quietly behind the scenes. Still, it can’t hurt to pressure him.

  5. Don Chandler says:

    It’s strange that Scotus decided to take on the prop 8 case. The case result was put forth as a narrow ruling affecting only California. If Scalia and gang wanted to review it, they risk that scotus will make a stronger ruling in favor of marriage equality nationwide…but given this unlikely event, Scotus deciding to review the case will highlight the discrimination against gays and this would just accelerate the inevitable, marriage equality nationwide. Seems risky and out of touch for the so called “conservative justices” to bring this case to court.

    Most of these justices defer to a state’s autonomy. Given that prop 8 was never supported by the political players of California, including then Guv Schwarz,…why would scotus want to interject its federal opinion on the matter? It just doesn’t make sense that scotus would want to weigh in on the issue…and as many folks agree, Californian’s will now support a pro marriage equality proposition. The impetus is greatly in favor of marriage equality given the super majority that Democrats have among state legislators.

    On the other hand, and more positive, it’s possible that there is a consensus in scotus to move forward on the issue of Marriage Equality. Striking down Prop 8 would send a clear message to the States that discrimination will not be tolerated at the core of a referendum.

    So how does Obama come to our support? Is he going to do the right thing and say this is a matter of discrimination or does he take the practical and political approach and say this is a California issue and a narrow ruling. Kind of tricky and one needs to know who wanted to review the case at the scotus level.

    And then, do Gays want to push the issue here? Or do we want to let the ruling stand on the narrow grounds? It’s actually a delicate matter. Texas might not be ready for marriage equality. But California is ripe.

  6. Butch1 says:

    The question is will our “fierce advocate” do it?

  7. Skeptical Cicada says:

    He only came out “personally” in favor of gay marriage. He very carefully avoided saying he thought it was unconstitutional to ban gay marriage.

  8. tsuki says:

    You expect Place Holder to take a stand on anything other than marijuana? Good luck with that. Place Holder makes Alberto Gonzales look good.

  9. PDQ says:

    My wallet never unlocked.

    Talky McPresident thought he could get away with doing an interview with undercover lesbian Robin Roberts and going on The View to say he supported gay marriage and that would be all he needed to do. Everyone else would push it through and he could avoid expending any effort or political capital. That’s how he operates. Nothing’s changed people!

  10. EdA says:

    While I can see the Justice Dept. opting out of Proposition H8, it’s more than a little bizarre even for Eric Holder’s flak to claim that the government is not a party to the DOMA litigation.

  11. Laura says:

    I read somewhere that he had planned to come out in favor of gay marriage right before the Democratic National Convention, but moved it up because Biden got ahead of it. That doesn’t sound like he wanted to minimize it to me.

  12. Skeptical Cicada says:

    Yes, I think our main disagreement was how long to push the game of chicken.

  13. Indigo says:

    He should but . . . well he?

  14. A reader in Colorado says:

    You “not holding your fire” would have resulted in President Romney????

    If you really think that, that is an amazing statement. I don’t think anything you did personally, or this site, would make any difference at all, in terms of the outcome of the Presidential election. No offense, but you’re just not big enough to do that.

    Yelling to people who already made up their minds that Romney was a serial income tax avoider (for example) 400 times might have been true, and there was certainly no harm in saying it, but I don’t think it made any difference whatsoever in the outcome. But holding your fire so that we might not have President Romney? Really?

    Walking (continuing to criticize the President and others) and chewing gum (supporting a reelection campaign) is not blendable?

    Where I believe you do make a difference, when you choose to do so, is in advancing the cause of gay rights. But changing the outcome of Presidential elections? Um, not being sarcastic or mean. But, um, no.

    And all that holding of fire was for nothing. Laying off politicians for elections is a big waste of time. It doesn’t advance the cause of gay rights for that period of time and it doesn’t really help the politician.

    And I don’t say this for nothing. When there is a Democratic candidate in 2016, I hope by then you can successfully blend criticism and election support, if you choose to. It can be done. Because you’ll have to. We’re going down the sewer here inexorably with the right wing shift of these candidates.

    Because that Democrat will almost certainly be a Clintonista, perhaps even to the right of Obama, and the Republican will almost certainly be worse than Romney.

  15. karmanot says:

    True. It’s amazing how you and our system warriors keep up spirit and hope.

  16. A reader in Colorado says:

    That’s because they never wanted what they said they wanted in the first place.

    The Dems, by and large don’t care about abortion and never did. They don’t care much about gay rights and never did. They don’t care about health care for ordinary people, by and large, and, if they did, that was long ago. They don’t care about Medicare in the here and now, they don’t give a crap about SS in the here and now.

    All this is sop. Pretending to care is a sop. There is really no reason, or care, about anything anymore in most of the Democratic Party, except campaign contributions and remaining in charge for the sake of things like plum committee assignments and the like.

  17. Sweetie says:

    Instead of being thrown under the bus, it’s being tossed off the cliff.

  18. karmanot says:

    At the risk of being a bummer troll, I can only say to those Berry Bots out there. “How’s that lesser of two evils working out for ya.”

  19. karmanot says:

    I come from the ACT UP generation, I say LOUD and CLEAR. OCCUPY the message for full Constitutional rights. If the court decides Marriage is not a Constitutional right then all marriages should lose legal standing. The last time we were nice and polite Bill Clinton betrayed us without so much as a backward glance.

  20. A reader in Colorado says:

    Obama never made his comment about gay marriage from a position of caring about gay rights in his heart and mind. He did it to get rid of a distraction for himself. And, whatever people took from it, I don’t think he ever intended to provide a full throated support of gay marriage in the first place. Listening to his interview, what I took from it was a mealy mouthed plea to let states do whatever the hell they wanted about gay rights, and that they “should” perhaps, approve of gay marriage in their states. If they wanted to.

    I also believe he considers DOMA a distraction, and that he considered DADT a distraction.

    In fact, I really think Obama is far less friendly than this blog posits. He doesn’t care about us and never did. But he also wishes the gay stuff would just go away. We’re unimportant to him, but we are a management issue, pro and con. I’m sure homophobes are an irritant to him.

    Just my opinion. And one that’s entirely consistent with his and his government’s behavior at every point..

    How people took that statement is another thing. I don’t think he even wanted it to go so far. I think he intended usual his mealy mouthed halfhearted quasi support. So I think that “coming out for gay marriage” thing that was never intended is now a kind of trap.

    He can’t really disavow it now without looking “non supportive to the gay community” or even downright unfriendly.

  21. karmanot says:

    The only global warming O will do is his bank account, pumped with speaking fees and lucrative charity gigs. He’s been taking lessons from Clinton.

  22. karmanot says:

    Yes John. You and Savage can have a loud voice in D.C.

  23. Oh god share them, I’d love that!

  24. karmanot says:

    I could give a s**t what Obummer has in his heart. This is one of those Overton moments where the shift to the right is so pronounced that full Constitutional equality, and civil rights for GLTBQ American citizens are subject to ‘interpretation’. Does anyone hear the name ‘Clinton’ ringing out in betrayal? That’s probably what Berry O has in his namby pamby heart.

  25. Hey Tom! Still in NYC and tracking the world?

  26. Old John has always been here, but he was convinced we wouldn’t even be having this discussion with President Romney so he held his fire for a few months :-)

  27. Skeptical Cicada says:

    It’s not about political cover. It’s about changing his stubborn mind. The lesson of the first term is that he only listens to two things: (1) cutting the financial support and (2) public shaming.

  28. S1AMER says:

    Obama has asked all of us on the left to push him before. Now it’s time for all of us in favor of marriage equality (and, no, I don’t just mean us gay folks) to push as hard as we can. No shouting and shoving, mind you, but a steady, reasoned chant and solid pushing forward. Our voices and pressure will give him whatever political cover he thinks he might need to add his administration’s voice to support for marriage equality everywhere.

    The prize is so close. So close. We all need to do everything we can to get more of our fellow citizens to join us so that the call for equality is heard not only at 1600 Pennsylvania Avenue but at 1 1st Street NE as well.

  29. Skeptical Cicada says:


  30. Tom Shevlin says:

    Hurray to John Aravosis!!! Glad to see you are still an active warrior for equal rights.

  31. BeccaM says:

    December, 2012, Universe A (the one we call home): Immediately after a rather decisive election, Dems and liberal independents immediately have to embark on lobbying, letter-writing, pressure and protests to get the man they helped re-elect to the presidency keep the promises he made throughout the campaign, including same-sex marriage rights, leaving Medicare and Social Security alone, and more. The GOP majority in one House of Congress drives the agenda and gets most, if not all of its demands fulfilled because the Dems are never willing to use the available leverage against them.

    December, 2012, Universe B (the one in which Romney and the GOP won): Republican conservative voters can sit back and relax, knowing their leaders will make every effort to enact every one of their wingnut demands else face primary challenges and massive losses in 2014. Bills to outlaw abortion, disenfranchise Dem voters, make the Bush tax cuts permanent, reinstate DADT and make DOMA more restrictive, and to repeal PPACA and privatize Medicare are passed in short order, with the Dem majority in one house of Congress capitulating every time, or bypassed by GOP parliamentary maneuvering.

    The difference? I’ve said it before: The GOP fears its base. The Dems don’t.

    Anyway, everybody here has noticed the same thing, that Obama loves to play the progressive populist during the campaign, but when it comes to to actually DOING something, there’s always excuses as to why he can’t or simply won’t. Filing amicus briefs in favor of overturning Prop 8 and DOMA wouldn’t be unprecedented. But they would require action and taking a real stand, rather than merely expressing an opinion.

  32. jomicur says:

    For four years Obama has made terrific speeches on virtually every significant issue but done nothing to back them up. How could anyone expect him to change now? When we need a rousing pro-gay oration about the right to marry, constitutional equality, full citizenship and such, Obama will be there. When we need someone to actually DO something, he’ll be playing golf with Boehner.

  33. basenjilover says:

    We ought to be pressuring Bill Clinton to come out swinging against DOMA. He was a coward and he didn’t have to sign that shameful piece of crap. He hurt thousands of gays and lesbians and we should not let him forget that.

  34. Skeptical Cicada says:

    Of course, the first group to feel that knife on immigration will be bi-national gay couples. Obama will be “very sorry” that he won’t be able to help them and will just have to deport the non-American partners.

  35. MichaelS says:

    Bravo – Great point. I have high hopes for him, let’s hope they’re not dashed. Chad should be on EVERY Sunday news show holding the administration’s feet to the fire on this.

  36. MichaelS says:

    Couldn’t see that coming, could we? That stabbing sensation in your back is the same knife that the immigrant community will soon feel about immigration reform, and the environmental community already feels about what Obama will do for global warming, and what every progressive in the nation will soon know all too well when Medicare is slashed as part of Obama’s “Grand Bargain” of appeasement and “bi-partisanship” (which really means “give away every advantage you have”).

  37. Skeptical Cicada says:

    Chad Griffin now faces a test at HRC. Will he pressure the White House, or will he become a Solmonese Sellout?

  38. Skeptical Cicada says:

    The only thing this White House notices is a cut in the constant flow of campaign money–and a nice disruption of the petulant president.

  39. Skeptical Cicada says:

    24 hours since Jay Carney spoke and this queer’s wallet re-locked tight.

  40. Skeptical Cicada says:

    Well that “honeymoon” didn’t even last as long as the one in ’08, did it?

    So we now have the return of the old triangulating Barack Obama, who bitterly and irrationally resists doing the right thing and has to be dragged kicking and screaming–the one who thinks the Constitution protects his parents’ marriage but not ours. What a surprise. Next up? Obama invites Rick Warren back to the second inaugural in another vain effort at making white bigots love him.

    My goodness, but the Democratic Party looks to be facing quite difficult odds in trying to hold the Senate in 2014. I take it they are going to want to pump the queers for money and dispatch their army of homo-bundlers again, yes? Well, I can’t think of a less effective way to motivate the queers than to stand mute and contribute to a Prop. 8 fiasco. Or are we also back to the old “you don’t have anywhere else to go” domestic abuse?

    P.S. Glad to see the old John return. It looks as though you’ll be needed on this one.

  41. nicho says:

    Note to White House: only 22 months until voting starts for the 2014 Congressional elections. Only 22 minutes until Democratic candidates start trying to raise money for the 2014 elections.

  42. nicho says:

    You’d be better off writing a letter to Goldman Sachs. If they tell him to do it, he’ll drop everything and get right on it. He doesn’t care what we think any more — now that he’s been re-elected.

  43. Jim Olson says:

    (Oh, and a stock photo from Shutterstock? There’s plenty of us with pictures from our weddings, John, that we’d be happy to share.)

  44. Jim Olson says:

    *sigh* Well, here we go again. Off to write a long letter to the White House. Again. Could I stop doing this please? At least with this White House, the letter might make it out of the mail room.

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