Obama files Prop 8 brief endorsing “limited” gay marriage right

The Obama administration has filed a brief on the Proposition 8 (Prop 8) gay marriage case, coming before the Supreme Court at the end of March.

The brief calls for Prop 8, which repealed gay marriage in California in 2008, to be struck down, and it argues for a “limited” right to gay marriage, per SCOTUSblog.  The administration’s brief does not call for the court to extend that right nationwide.

You can read the brief here.

SCOTUSblog seems to have the most extensive, and best, analysis of the brief so far,  Here’s an excerpt from their post, titled “US endorses limited gay marriage right”:

The Obama administration on Thursday urged the Supreme Court to rule that same-sex marriage should be required in eight more states, beyond the nine that already permit it, although it stopped short of explicitly calling for the Justices to extend the right to the entire nation.

Here was the government’s key argument why the California ban on same-sex marriage fails its constitutional test:  ”California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8.”  Solicitor General Donald B. Verrilli, Jr., filed the brief shortly after 6:30 p.m. Thursday.  California is one of the eight states that would be covered by that argument.

Much of the logic of the government’s brief — its first entry into the controversy over the ballot measure – could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.

Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make.  Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case.  The President could take the opportunity to speak to the nation on the marriage question soon.

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution.  What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married.  The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

The eight states that apparently would be covered by such a decision are: California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

It will be interesting to see what the reaction is from other lawyers interested in the case, most notably gay rights legal experts, in terms of whether the limited embrace of same-sex marriage is enough.

Here’s AP’s take:

In a historic argument for gay rights, President Barack Obama on Thursday urged the Supreme Court to overturn California’s same-sex marriage ban and turn a skeptical eye on similar prohibitions across the country.

Dan Savage, Terry Miller marriage license

Dan Savage and husband Terry Miller are one of the first gay couples to get a marriage license in Seattle. (Love the photo of MLK in the background.)

The Obama administration’s friend-of-the-court brief marked the first time a U.S. president has urged the high court to expand the right of gays and lesbians to wed. The filing unequivocally calls on the justices to strike down California’s Proposition 8 ballot measure, although it stops short of the soaring rhetoric on marriage equality Obama expressed in his inaugural address in January.

Interestingly, in spite of suggesting that the President didn’t fully go there, AP does say, “the brief marks the president’s most expansive view of gay marriage and signals that he is moving away from his previous assertion that states should determine their own marriage laws.”

Again, it will be interesting to see how this plays out once we all have time to read the brief and think about it a bit.
UPDATE: Here’s Attorney General Eric Holder’s statement about the brief:
“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law.  Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

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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150 Responses to “Obama files Prop 8 brief endorsing “limited” gay marriage right”

  1. Butch1 says:

    I’m sure it has to be somewhere, the only problem is where. ;-)

  2. JamesR says:

    Yes THANKS Butch – have been really busy offline for several weeks – found the problem on other blogs. …there had better be a backup somewhere. Fuck. It goes against the entire raison d’être of the Interweb. Erasing blogs – especially political debate blogs – is a civil injustice, and were I conspiratorially minded, well, premeditated to harvest data then deny access and keep us ignorant or continually re-inventing the wheel.

    But it is probably bad code and sloth. Probably. And recoverable. I hope…

  3. JamesR says:

    THANKS FLL – I’ve had a really busy three weeks or so in the Real World, also clicked around, found the problem is on JoeMyGod too, the Disqus ‘upgrade’ or something wiped comment history for more than one old thread… A Big problem.

    I enjoy your comments, even though / especially when we do not exactly agree or severely disagree, there can still be things to share and points to make and new ways to see things that can be the result. And I like your style. I sure hope our analyses of the first DOMA brief, and all the rest are somewhere damnit. They gotta be. Disqus hijacking them, and also, I think, preventing spiders and bots from the likes of the Wayback machine from snarfing full comment threads is a really really bad thing. MODERATER!? Bueller?? We have a Problem.

    We also may be significantly less than the proverbial 6 Kevin Bacon Degrees separated, as I lived in FtLauderdale a decade, and it’s a Small Town for natives and smaller for those who give a damn about politicks LOL.

    LOVE the CharlieX, heh – glad you liked and THANKS – did you know there’s a fan movie based on his foray through the Guardian of Forever that changes things and gives a lot of familiar actors some different roles, in a cheesy but interesting composition? Google “Of Gods and Men” and discard returns for the monk movie, or see the lo-res here http://www.youtube.com/watch?v=kFqAME7dx58 Enjoy!

    I will resume http://blog.lib.umn.edu/hutch213/myblog/lolcat_blog_comments.jpg

  4. dcinsider says:

    Paranoid much? I’ve been posting here for years. it is possible to disagree with you without being part of some vast conspiracy of Internet trolls sent by the White House to defend its policies.

  5. dcinsider says:

    Guess we’ll have to agree to disagree on this one.

  6. hollywoodstein says:

    You must be getting old.
    Sure stem cell research may solve the problem, but with that little global warming thingy I wouldn’t bet on it, at the very least it will be tres expensive.
    Don’t resist it. Embrace it.

  7. hollywoodstein says:

    Do you get paid or is this as a favor?

  8. hollywoodstein says:

    Actually, yes it is.

  9. hollywoodstein says:

    If only they had put the words from the press releases and interviews into the brief.

  10. hollywoodstein says:

    I’ll own that betrayal comment.

    Would Obama have rather had Ike ask Rankin to ask the Court to resolve Brown v. Board by repealing Jim Crow in 8 states?
    Thank God Ike did the right thing. Obama chose not to.

  11. hollywoodstein says:

    Ah, now there’s a thought.

  12. hollywoodstein says:

    Perhaps they were invited?

  13. hollywoodstein says:

    I suppose the conversation went something like this, ” You better get some peeps over there cause the hysterical girlz at Americablog need them some mansplainin’ of what a big favor this Administration has done them by not arguing for full equality now.”

    Or something similar.

  14. hollywoodstein says:

    Coincidence or Not?

  15. hollywoodstein says:

    So are you paid or are you doing this for free?

  16. hollywoodstein says:

    I count 3 karmanot.. How many do you count?

  17. hollywoodstein says:

    so true, so sad…

  18. hollywoodstein says:

    So you’re saying, ” Feed the troll”?

  19. hollywoodstein says:

    Well, I sure am glad my fierce advocate tacitly acknowledged the anti gay laws are UnConstitutional.
    Perhaps next time he has an opportunity he can do it on paper in the Supreme Court, instead of in an interview for political cover.

  20. hollywoodstein says:

    As seen by Obama’s tepid statement improving the support for equality, the imprimatur of the Supreme Court that discrimination is UnConstitutional would strengthen support for equality not vanish it.
    They should have argued for full equality simple and crystal clear as the bell of liberty. Instead, Obama’s brief gives the court cover for a wishy washy mess of a decision.
    There are 4 votes for full equality. They needed to persuade one more.
    They chose not to argue for full equality.

  21. hollywoodstein says:

    Words, words, words.
    You’re comment about Scalia proves the point. The Justices can do whatever the hell they want. The Court could use this case to reach the larger question, especially since adopting the can’t take it away once you’ve given it approach will create an unweildy patchwork around the country.
    The Obama Administration could have easily made the argument for full equality, and included the cramped argument as well. There are already 4 votes for full equality.
    They chose not to.

  22. hollywoodstein says:


  23. hollywoodstein says:

    What about Obama makes you not want to vote for other blacks?

  24. hollywoodstein says:

    That is the most damaging thing about the brief. This amicus does not provide a novel, unknown theory of the case. It’s importance, as with most friend of the court briefs, is to give a sense of the sentiments of the various stakeholders.
    Any Justice, but Kennedy specifically, careful about wading into a hot button social issue, who sees one of the political branches mincing words would get the sense that even a Democratic Administration not facing re-election is not insisting on full equality, so he would be less likely to endorse it as well.
    This is one of the rare cases where this aspect might have some suasion, and they blew it.

  25. hollywoodstein says:

    Let the Court make the mess. Justice Kennedy full on well knows the argument made in the brief.
    Kennedy may have been persuaded better if he saw the political, Executive branch make a powerful argument that the time has come for all to be treated equal.
    Instead, he sees a timid, careful political branch, which by not making the argument for full equality, actually helps make the argument against full equality.

  26. hollywoodstein says:

    NO this is not good news. The news is that the Administration that We put in office, repeat that would not be in Office today without Us, chose to treat us as second class citizens.
    Of course, it’s a step, of course we’ll get there, of course we are going to Overcome, eventually.
    But the Administration should have argued for full equality, period.
    The brief gives the Court cover to split the baby, which could be an ugly kludge that will lengthen the time till we finally Overcome for everyone everywhere.
    That is not good news.

  27. hollywoodstein says:

    Where did this fear come from? Why do we seem so much easier to scare nowadays? Is it mass communications? I would say fewer people get quality information, but that is by choice. It is much easier to get quality information today than ever, although it is also easier to get bad info too, but also too don’t believe everything you read, mk.
    Why do we scare so?

  28. Butch1 says:

    After eight years of the Bush-Cheney debacle I thought Obama was the “real deal” and was going to do what he lied and pretended he was going to do when he ran as a moderate democrat. Unfortunately, he hoodwinked me, along with many other liberals and revealed himself to actually be a moderate republican and ruled that way until he needed to run for his second term. He derided liberals up until that time when anything went wrong in Congress and actually made fun of them and made them the butt of his jokes. When it was time to run again he changed back into a liberal and started acting like one courting the public again hoping the liberals would forget how he acted and tried to get them back on the “Team-Obama” bandwagon again. Some fell for it but others, like myself remember his song and dance from the last election and knew this was just an act and that once elected he would revert right back to his former self.

    Yes, Obama is the “lesser of two evils” but why do we have to continue voting for “the lesser of two evils” when we can vote for the right person that is in a third party every time? There are more parties than just these two, stale parties that take advantage of us and continually screw us. They automatically assume that we will continue to vote for one or the other and if the democrats continue to play the role of being “the lesser of two evils” they will never improve themselves. They need to be thrown out of office on their arses for the way they have been behaving. They have let the republicans get away with this only because they are not worried that they will be replaced by someone else. I say replace them by third party candidates who will actually do the job and what we want of them. It can be done if we will only have the cojones to start doing it.

  29. hollywoodstein says:

    The negative reaction is not from misunderstanding the fact situation and the questions presented by the case.
    Your apologia misleads by ignoring the fact that the Court in its wisdom can reach a conclusion by whatever means it chooses.
    The court can choose various incremental small footprint resolutions and allow the march of history to march on, all the while continuing taking little bites at the apple as it gets pecked to death by the avalanche of appeals from all 50 states until it gets tired of doing so and finally settles the matter once and for all.
    Or the court could choose an expansive ruling simply by reasoning equal protection equals heightened scrutiny equals UnConstitutional equals Legacy. Bitches.
    Let the Court split the baby. The administration’s filing has meaning and is a political statement as well. The Administration should have thrown the long ball. At the very least, it would have helped move the Overton window, and hastened the time to achieve equality. Instead, the Obama administration chose to treat the gays as second class citizens.
    That is why there is a negative reaction.

  30. hollywoodstein says:

    Not fooled. The first time around I was leery of Obama’s early, heavy-duty, under reported insurance industry backing. But betwixt, Old Man Get Off My Lawn MC J, it was as good a time as any to break the overdue color bar.
    Second time around, I just thanked American Baby Jesus that privileged, pompous, Queen Anne Romney and her Mormon Bishop did not become our rulers.
    It would have been worse, hard to believe.

  31. hollywoodstein says:

    OFA strikes again.

  32. rmthunter says:

    For all of those who are moaning that the Administration’s brief didn’t call for striking down all anti-marriage provisions nationally, I just ran across this from his presser yesterday:

    “Q And given the fact that you do hold that position about gay marriage, I wonder if you thought about just — once you made the decision to weigh in, why not just argue that marriage is a right that should be available to all people of this country?

    “THE PRESIDENT: Well, that’s an argument that I’ve made personally. The Solicitor General in his institutional role going before the Supreme Court is obliged to answer the specific question before them. And the specific question presented before the Court right now is whether Prop 8 and the California law is unconstitutional.”

    Bottom line: Unlike Justice Scalia, the Administration has to address the question that was asked.

  33. rmthunter says:

    Sigh. OK, this is Obama. He’s a strategist, not a tactician. He’s laying out a very strong argument for a constitutional basis for recognizing same-sex marriages. My reading of the situation is simply that same-sex marriage has growing support nationally, but it’s at a vulnerable stage: supported by a slim majority, which is a very new majority. If the Administration — or the Court — is perceived to overreach, that majority could vanish really fast. (And you can believe that there would be reactions not only from the usual suspects — NOM, AFA, FRC — but right-wing luminaries like Limbaugh, Coulter, and the Breitbrats. Gretchen Carlson would have an orgasm on camera.) As it stands, no, the brief doesn’t call for nation-wide recognition of same-sex marriages, but it certainly lays a strong foundation for it, should the Court decide to go that far. (And it’s going to be the Court’s decision, not Obama’s. He’s just providing cover.)

    What I think is perhaps more important is the call for heightened scrutiny on laws singling out gays and lesbians as a class. That’s the other major issue in these cases, and the one with a lot more in the way of potential consequences. If we get heightened scrutiny on cases involving anti-gay laws, they’re toast: there’s not one of them that can pass muster.

    As far as I can see, this is a solid one-two from the Administration.

  34. Butch1 says:


  35. hollywoodstein says:

    U NO Miss Wood Stein luvs ur werk Karmanot, but just in case she misses a beat she wants you to know even when u r right even when she’s wrong on ur side. Don Knott’s want to smear you with our overlapping maigsteria smegma.
    Luvs, luvs, luvs, me some John Avrosis truth, even more than I luved me some karmanot truth, now that I know more there is more love to go around.

  36. count me in too

  37. don’t apologize. you speak the truth

  38. your statement is very clear to me. thank you

  39. amen to that. call him what he is

  40. Limited rights huh? what doesn’t Obama understand about true equality? as the nation’s first black president surely he understands that if his race had only received limited freedom and equality he surely as hell wouldn’t be president now. I voted for this asshole twice and i can tell you it will be a cold day in hell before i vote for another black.

  41. htfd says:

    Hey people, have no fear. When Obama wants more money for his presidential library he will redefine his message, make it stronger in wording just to get your bucks.

  42. Stephen Clark says:

    The negative reaction seems to be a result of thinking that the entire question of same-sex marriage is automatically before the Court. As you realize, it isn’t.

    Before the Court are only two parts of the issue: (1) whether the federal government can ignore same-sex marriages that a person’s home state has created and (2) whether a state can give same-sex couples all the rights of marriage but deny them access to marriage itself.

    Folks don’t understand that these cases don’t raise other issues, like (1) whether a state can refuse to provide same-sex couples with marriage, civil unions, and domestic partnerships, (2) whether a state has to recognize an out-of-state same-sex marriage, or (3) whether the federal government must recognize a same-sex marriage when you move to a state that doesn’t.

    Those variations on the same-sex marriage controversy simply are not presented by the facts of these cases and thus are not before the Court yet.

  43. Stephen Clark says:

    The brief doesn’t address that issue because that issue isn’t before the Court yet.

  44. Ryan says:

    NOM wants no recognition of gay relationships anywhere. They sometimes take less extreme positions in situations where their true position would be too unpopular.

  45. Ryan says:

    Obama’s not the one throwing scraps. Justice Kennedy is the one who decides whether to maintain the status quo, overturn California’s ban, overturn the bans in states with civil unions, or to overturn all state bans. I want him to take as expansive position as possible. One approach is to push for all or nothing. The advantage is that if we win the fight is done. The disadvantage is that if Kennedy is too scared of or too uncomfortable with that position, he will uphold Prop 8 and we have to fight a messy battle at the ballot box. Obama’s (and the lower court’s) approach is to offer a middle position. The advantage is that they are probably more palatable to Justice Kennedy so he is more likely to take them if given a chance. The disadvantage is that he might take it when he would have gone for full equality.

    I’m not wise or knowledgeable enough to know which approach is more likely to produce the best result, so I’m not going to criticize people for taking positions that I consider plausibly the best.

  46. dcinsider says:

    Goodness, deep breath everyone. This is good news not bad.

  47. dcinsider says:

    Please read the series of posts below. Your sort of over the top on your reaction. Its not nearly so bad as you seem to think.

  48. dcinsider says:

    You are correct that it could lead to a mess, and I believe that mess is likely our best case scenario. It is not the argument that I would make, but that doesn’t lessen its importance or historic significance. I believe it was written for Justice Kennedy with the hope that 5 justices just might get to this minimalist decision. Its not a bad strategy for an amicus. I agree with you its not the most preferable outcome, but I suspect that if they get past standing, it might be the most favorable we can reasonably expect.

  49. Ninong says:

    President Obama said this afternoon (Friday, March 1) that if he were on the Supreme Court, he would use the Prop. 8 case to strike down all bans on same-sex marriage nationwide! That’s helpful even if it’s not what Eric Holder said in the amicus brief filed by the United States in that case.

  50. dcinsider says:

    I suspect others would agree, were the decision to fall along those lines. I live in the “bubble” but I do venture out of it from time to time :)

  51. Butch1 says:

    That’s very interesting; I thought everything was stored on the internet forever. I wonder what happened to it unless it was moved to another area for storage to make additional room. ( e.g. new disc drive or some other reason. )

  52. dcinsider says:

    I think we are more or less in agreement. My objection was to some of the comments posted here that suggest the brief is some sort of betrayal, which is, of course, sheer nonsense. Your posts are usually on the money so I suspect we agree on most of this.

  53. Butch1 says:

    One has to wonder what he could have been and done if he really was a liberal democrat and not a moderate republican.

  54. Butch1 says:


  55. karmanot says:

    “this would be the single most important gay rights victory in history” Sad if true. Maybe because you are a DC insider it seems to you.

  56. karmanot says:

    Why? America is collapsing. People are still unaware for the most part.

  57. karmanot says:


  58. karmanot says:

    Or a unicorn disguised as a horse of many colors doing pro bono in the City of Oz

  59. karmanot says:

    It never ceases to amaze me that lawyers consider justice as the measure of last resort.

  60. karmanot says:

    As soon as they undo laws demanding piano legs wear bloomers for modesty’s sake.

  61. karmanot says:

    True. Jesse Jackson didn’t cry the second time around. For all the hoopla around being America’s first mauve president, Obozo will go down in history as less effective thatn Herbert Hoover.

  62. karmanot says:

    I wonder what Jeremiah Wright thinks of Obozo?

  63. karmanot says:

    Stay on that soap box for Christ’s sake and thousands of us will join you. I would support any movement to impeach that double dealing bastard.

  64. karmanot says:

    The eight-state middle finger solution is perfect Obozo compromise.

  65. karmanot says:

    I have learned to accept the downers as an act of compassion. Trolls might be rehabilitated if only we loved them a little more and insulted them more often to let them know we care.

  66. karmanot says:

    Exactly. The whole ‘gay’ marriage movement is aimed at property owning, middle class beougoise couples, who want rights equal to those of the straight class persusaion. But, nobody, including this site has figured out or spoken to the large group of senior couples, many of whom have been together for decades and who depend on goverment programs to survive. By being married they lose a significant percentage of aid as couples and won’t be able to take advantage of this fabulously overhyped ‘marriage’ spectacle. As long as the divisive ploy of honoring states rights here or there is in play, it’s all just 11ty dimensional bullshit.

  67. karmanot says:

    They wear man thongs so it’s hard to tell.

  68. karmanot says:

    Oh yes, the charts are very important. When figuring out how to turn his national health care plan tiover to the insurance companies, the Obozoites figured that postponing the full implementaiton until 2014 ONLY a hundred twenty or so would die without care and that statistic was doable.

  69. FLL says:

    You know, you’re right. In a comment above, I was criticizing Obama’s “eight-state” solution as untenable, but then I wrote that one significant contribution was asking for heightened scrutiny, which Obama first did with his anti-DOMA brief of July 1, 2011. [Sound of screeching brakes.] Wait a minute. July 1, 2011? That rings a bell. I have to admit that I’m a relative newcomer as far as commenting; I only started commenting in September or October of 2011. But I was quietly reading before that time because I enjoyed John’s analysis of the infamous pro-DOMA brief of June 2009. So, out of curiosity, I went back to the archive for July 1, 2011 and… all the comments are gone! That goddamn Disqus program. But I have a good memory, and I like to save souvenirs. I saved the link for eleventy-dimensional chess that you attached with your reply to BeccaM on July 1, 2001. I saved that link right here. Is the “eight-state” solution eleventy-dimensional chess? I prefer to just say it’s an untenable argument. However, I’m glad that the administration is pushing the Court to change the level of scrutiny from rational basis to heightened scrutiny. Aren’t memories from 2011 fun?

  70. basenjilover says:

    No I wouldn’t take it… I will not take bits and scraps Obama thrown out to us from his dinner table. My partner and I applied for marriage license 2004 in SF and then license taken away…. we’re still waiting now how many years? We’re not getting younger you know.

  71. Stephen Clark says:

    Right–particularly, but not exclusively, in those circumstances.

  72. FLL says:

    Yes, I can see that with the phrase “particularly in those circumstances,” the brief is leaving the door open. It occurred to me, just as it’s occurred to you, that switching to heightened scrutiny as the standard would have such a profound effect that it would doom the discriminatory marriage amendments throughout the country. That’s why I said, in my longer comment, that if helping to change the level of scrutiny to heightened scrutiny was Obama’s only contribution, it would, nonetheless, be a significant contribution.

  73. FLL says:

    That is exactly why, in my longer comment, I quoted the amicus brief as saying that that there is no important government interest served, “particularly in those circumstances.” Yes, that leaves the door open, and I’m sure the intent is to leave the larger question for another case.

  74. Stephen Clark says:

    You’re welcome. Yes, it is an untenable argument, and I think the President, the DOJ, and the justices all see that. As I said below, I don’t think the brief is saying that the Equal Protection Clause ONLY applies if a state authorizes civil unions. It is merely saying that it DOES apply AT LEAST in those cases, while leaving the broader question for another day.

  75. Stephen Clark says:

    FLL, I think your concerns are legitimate, but let me add a clarification. The brief isn’t saying that the Equal Protection Clause requires marriage equality in ONLY the eight states with civil unions. The brief is saying it is addressing only that issue because that’s the only issue before the Court right now. I don’t think anything in the brief says the Equal Protection Clause would not require marriage equality in the 33 others states. The brief just leaves that question open. In fact, the brief barely even leaves that question open, because the heightened scrutiny that the brief advocates would almost certainly lead to the conclusion that the bans in the 33 other states are unconstitutional too. If the Court accepted heightened scrutiny and struck down Prop. 8 without deciding anything about the laws of any of the other states, that would be a landmark victory that would almost certainly lead to striking down the bans everywhere else too.

  76. FLL says:

    This statement from the press conference helps. Thanks for quoting it. I agree that the request for heightened scrutiny is historic. I just think that the notion that the Equal Protection Clause only kicks in if a state first makes civil unions legal is an untenable argment, which is what I told dcinsider.

  77. Stephen Clark says:

    I agree with dcinsider.

  78. Stephen Clark says:

    In this afternoon’s press conference, the President tacitly acknowledged that he believes the laws banning same-sex marriage are generally unconstitutional, not just the California law. Here’s a transcript:

    Q. And given the fact that you do hold that position about gay marriage, I wonder if you thought about just, once you made the decision to weigh in, why not just argue that marriage is a right that should be available to all people?

    A. Well, that’s an argument that I’ve made personally. The Solicitor General, in his institutional role going before the Supreme Court, is obliged to answer the specific question before them. And the specific question presented before the Court right now is whether Prop. 8 and the California law is unconstitutional, and what we’ve done is we’ve put forward a basic principle, which is–which applies to all Equal Protection cases. Whenever a particular group is being discriminated against, the Court asks the question, “What’s the rationale for this, and it better be a good reason? And if you don’t have a good reason, we’re going to strike it down.” And what we’ve said is that same-sex couples are a group, a class, that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it’s doing it, and if the state doesn’t have a good reason, it should be struck down. That’s the core principle, as applied to this case. Now, what the–you know–the Court may decide that if it doesn’t apply in this case, it probably can’t apply in any case–there, there’s no good reason for it. That’s, if I were on the Court, that’d probably be the view that I’d put forward. But I’m not a judge; I’m the President. So the basic principle is let’s treat everybody fairly, let’s treat everybody equally, and I think the brief that’s been presented accurately reflects our views.

  79. FLL says:

    I’m aware of the historic nature of asking the U.S. Supreme Court to change its level of scrutiny from rational basis to heightened scrutiny. My criticism is of both the “eight-state” solution or the possibility that the justices might imagine that the Equal Protection Clause applies uniquely to California only because it created marriage equality first through its state government, then afterwards took it away through ballot initiative. I think my objections are reasonable and not over-the-top. See my comment above and tell me if you don’t agree.

  80. FLL says:

    Having finally read the brief, I’ll stick with my initial objection to the administration’s key argument that the Equal Protection Clause applies when a state has already granted “the substantive rights and responsibilities of marriage to gay and lesbian domestic partners,” i.e., civil unions. This seems to run counter to the clear intent of the Fourteenth Amendment, which was enacted to protect post-Civil War blacks from the so-called Black Codes which restricted their rights across the South. If the administration’s logic had been used in the late 19th century, Southern states would only run afoul of the Fourteenth Amendment if they had already granted blacks most of the substantive rights required in a fair, color-blind society (perhaps in a piecemeal fashion), but had simply refused to codify it in a more general, all-encompassing law. This is one of the most laughable scenarios imaginable. Post-Civil War Southern states granted not one single example of equal rights to blacks, and instead erected Black Codes to specifically strip black citizens of all substantive forms of equality, e.g., the right to hold property and form legal contracts. The administration’s argument that the Equal Protection Clause is triggered by the state granting equal rights, albeit under the name “civil union,” leads to the absurd situation in which states with constitutional amendments that fully discriminate against gay citizens are immune from the Equal Protection Clause, and only those states which have laws creating same-sex civil unions are subject to the Equal Protection Clause. This is madness. The only island of reason in this portion of the amicus brief appears on page six, where the administration states that there is no important government interest served “particularly in those circumstances,” acknowledging the obvious fact that there are quite a few other circumstances under which the Equal Protection Clause would apply. Similar criticism could also be leveled against another option that the Supreme Court is considering: the Equal Protection Clause only applies when a state has first created marriage equality, then afterwards took it away, as in the unique case of California.

    In addition to the substantive arguments against the administration’s logic are practical objections. The eight-state solution would grant marriage equality in the following states: California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. Clearly, these eight states are very close to passing marriage equality through their own efforts, without any help from the U.S. Supreme Court. It wouldn’t be surprising if one or more of these states had marriage equality by the time the Supreme Court rules in June or shortly after.

    Having read this drivel, I proceeded to the one area where the administration has already made a contribution (beginning on July 1, 2011) and makes a contribution again in their amicus brief opposing Prop 8: changing the level of scrutiny from rational basis to heightened scrutiny (either intermediate scrutiny or strict scrutiny). It would be difficult to overstate the importance of this change, as it would affect all future gay rights cases, whether dealing with marriage, employment or anything else. The amicus brief (pp. 6-7) repeats the effective arguments concerning heightened scrutiny developed in the administration’s brief in the current DOMA case, United States v. Windsor:

    (1) history of discrimination
    (2) sexual orientation bears no relation to ability to perform or contribute to society
    (3) discrimination based on an immutable or distinguishing characteristic
    (4) a minority group with limited power to protect themselves from adverse outcomes in the political process

    If this is Obama’s single contribution to the progress of civil rights, it’s nonetheless substantial. My main criticism concerns both Obama’s “eight-state” solution and the option that the justices might entertain of fancying that the Equal Protection Clause only applies uniquely to California because that state had first created marriage equality by law, then removed it by ballot initiative. Either one of these rationales lack intellectual substance, at best.

  81. dcinsider says:

    As an attorney I am concerned at the over top complaints being lodged here about the brief. The brief is fantastic and historic. I am not an Obamabot (read my earlier posts) but the fact is Obama could have filed nothing. He went well beyond that, and puts in place a very persuasive argument that would lift discrimination against gays and lesbians to heightened scrutiny, which, in turn, would make the states with anti-marriage equality bans on very shaky, in fact indefensible, foundations. Were SCOTUS to adopt Obama’s brief as its opinion, this would be the single most important gay rights victory in history, and would be the benchmark decision that would lead to full equality in short order. I think you all are missing the importance of what this brief accomplishes, and the historic foundation it lays.

    All that being said, my guess is that Perry gets decided on standing grounds in which all nine agree that BLAG lacks standing. The unanimous Court will decline to address the underlying issues. The district court opinion will become the law in California Likewise, in DOMA, the majority will find no standing, with a dissent by the four liberals arguing standing and adopting the arguments put forth by the Appellant. The district court opinion will apply, and we are back to square one.

    I hate to be the skunk at the garden party, but there is an obvious out for SCOTUS from underneath this controversy, and it is the rare SCOTUS that won;t opt to take that out and leave the larger questions for another day.

  82. Absolutely fucking infuriating. The line should be: marriage ought to be a matter between any two citizens, whatever their sex, and anything less than that is an abrogation of civil equality. A simple declaration of that would force the bigots to out themselves (pun intended) as religious fanatics, because what other possible basis can be found for limiting marriage to heterosexual couples other than a religious one? Instead the Obama administration tacitly concedes the validity of separate-but-equal status. Utterly, utterly useless.

  83. Butch1 says:

    I think you may be correct. I don’t think he had an over-night conversion when his daughters convinced him that it was wrong to be on the wrong side of history. He wanted his legacy to show him to be more socially liberal than he was acting. However, it is NOT how he thinks or feels; it is all a political calculation and unfortunately, an act like most of his presidency has been.

    He lied to get into office by pretending to be a liberal democrat when all the while he has been a moderate republican and has ruled like one ever since. His first four years he derided the liberals if you will recall but realized he needed them to become re-elected so he once again, turned on the charm and started acting like a liberal democrat and starting spouting liberal slogans again and the people fell for it again. ( at least most of the people did ) You will notice the crowds were not as great the second time around as the first. Most of them either sat out or like myself, voted for a third party candidate, a real liberal.

  84. Butch1 says:

    I’m beginning to question his credentials on that. So far, he has gone against everything that I can see, that is constitutional throughout his tenure as president. ( e.g. drone strikes on citizens without charges or trials, signing the NDAA, continuing his many “black-sights” where we “do not torture anymore” and all the little wars to which we aren’t yet privy. The Bradley Manning debacle has been an example of his heavy-handedness at ignoring the basic rules and regulations of how a soldier is supposed to have a speedy trial. Incarceration is supposed to be no longer than 120 days until charges are brought up; He was held for over 1000 and many of those were in Solitary Confinement where he was tortured to get him to sign their statement. “we do not torture.” This president thought his jail conditions were just fine. at Quantico. It took a Judge to get him out of there and into humane conditions. ) There is nothing about this man that is Constitutional that an impeachment wouldn’t cure, in my opinion. Since he’s been given the power it has gone to his head and the evil side seems to have won on many issues. We see how he feels about Social Security and us Seniors; he really doesn’t give a fig or he wouldn’t continue to put it on the negotiation table with the debt ceiling or any other budget debate when it has nothing to do when the budget.

    Okay, I will get off my soapbox now. Sorry . . .

  85. Butch1 says:

    He still has a huge problem with the huge inequality as Commander in Chief over all of the branches of Services of the United States when he still lets gay men and women who are legally married from their own states still suffer inequality from their own branches of the service only because of a national law still hovering over this country ( DOMA ) forcing them and their spouses to remain “single” in the eyes of their branches of service in unequal pay, housing, and how the service treats their spouses. They may be able to serve openly but, it doesn’t help them one bit in actually being equal when they lose their lives or do not get the actual benefits that the straight soldiers, marines, sailors, or national guardsmen and women get only because they are straight.

    This president failed and could have gone further in his amicus. He could have made a bolder statement but again, played politics and played it safe. No one gets hurt save, us. We again, will have to carry the load to win our rights. Not that we do not appreciate this step, but, he could have made a bold and bigger statement just like his fancy speeches usually say he wants. When he finally gets around to doing something, it is a weak attempt at satisfying us.

  86. nicho says:

    If people misread what you wrote, it’s probably because you weren’t clear.

  87. Ninong says:

    Because I think there are four certain votes, one very likely vote and another quite possible vote in favor of overturning Prop. 8.

    Even if something goes wrong and they can’t get Kennedy onboard, there’s still the possibility that the Court could then deny standing to the proponents, which would automatically allow the Ninth Circuit’s ruling to stand.

  88. JefferyK says:

    I would add fear and lack of leadership.

  89. JefferyK says:

    Really? Why?

  90. Ninong says:

    I would be shocked it the Court allows Prop. 8 to stand.

  91. NCMan says:

    where did my comment say anything like that? my comment only addresses what I think the court will do which is to uphold the decision of the 9th circuit court which said that a state couldn’t take away marriage rights once given. i made no comment as to what i think SHOULD happen or whether I agree with what the 9th circuit said. In fact I believe the 9th circuit made the decision they made ONLY to limit the decision to CA so that nothing they did would make marriage legal in any other state. And, I think they only did that to avoid causing trouble at the Supreme Court. I’m guessing that the 9th circuit thought that if they upheld Judge Walker’s ruling that there is a constitutional right to same-sex marriage that the Supreme Court would try to find a way to overturn it. But, that the Supreme Court will allow the ruling that applies to CA only to stand. And, once again, I haven’t stated what i would like to happen or what I think should happen. Just what I think will happen whether I approve of it or not.

  92. Ninong says:

    I’m going to look on the bright side and say that it’s better that the Obama administration did file their amicus brief than if they hadn’t, even if they did narrow their support to exactly the same as that of the Ninth Circuit’s ruling. It’s still possible that, Justice Anthony Kennedy willing, the Court could expand their ruling beyond that of the Ninth Circuit. I think as it stands now, a ruling in favor of repeal of Prop. 8 is almost a certainty. The only question is whether it will be limited to just California or will the Court pick up the “fundamental right” argument and run with it, much to the horror of Antonin Scalia.

    Hey, guess who else filed their own amicus brief?




  93. NCMan says:

    you seem to have a HUGE problem with reading comprehension. My comment doesn’t say anything about what I want. It only addresses what I have always thought the court would do.

  94. hollywoodstein says:

    Because of religious bigotry and racism, the two poisons of the body politic.

  95. hollywoodstein says:

    Sadly, yes.

  96. JefferyK says:

    If gay marriage is a states rights issue, why would taking those rights away at the state level be a problem?

  97. JefferyK says:

    Apparently the Obama Administration believes that gay marriage is not a constitutional right and that we are not entitled to equal protection under the law? Nice. Seems to me that if gay marriage is a states rights issue, then Prop 8 should be allowed to stand, despite the Administration’s bizarre states “substantive rights and responsibilities” argument. Maybe I’m missing something. With friends like these, who needs enemies? Anyway, I expect the Supreme Court to allow Prop 8 to stand.

  98. mark_in_toronto says:

    Why is the American government living in a bubble? Not only with gay marriage, but with health care, immigration, the economy, gun laws, social services, women’s rights, marijuana laws and the other obvious areas. Is what happens in other parts of the world some kind of fantasy or dream?

    Full equal marriage works everywhere else . . . but in America, I guess people think it will cause some kind of negative effect. Which is . . . . . what?
    It’s too bad Americans don’t want to live their own lives. They would rather expend all of their energy telling others how to live theirs. What a sad way to live.

  99. BeccaM says:

    I’ve noticed that, too. Not sure if it’s an OFA troll or just a drive-by coward who won’t post a refuting comment or join in on the discussion. But whoever it is has been consistently doing this the last couple of weeks.

  100. hollywoodstein says:

    Evo Devo?

  101. nicho says:

    Well, I see the OFA troll has been by to downvote anything that criticizes glorious leader.

  102. nicho says:


  103. nicho says:

    NOM wants the state-by-state solution, just as you seemmto.

  104. hollywoodstein says:

    A down vote for asking for more background? Someone is down vote happy.

  105. hollywoodstein says:

    Then why not just say it?

  106. hollywoodstein says:

    Closet homophobe. I wonder what Jeremiah Wright thinks of homosexuality?

  107. Ninong says:

    It seems to me that if Section 3 of DOMA falls and the federal government recognizes all legal marriages, even those involving same-sex couples, then it won’t matter where you move. As far as the federal government is concerned, you are legally married, no matter what your new state of residence thinks. Section 2 of DOMA gives states the right to refuse to recognize same-sex marriages performed in another state, so either Congress has to repeal all of DOMA or the Court has to be presented with a challenge to Section 2 and rule it unconstitutional.

    Since marriage is nothing more than a contract, it shouldn’t matter to the federal government where you move after you get legally married. They’re recognizing the legality of your contract and not whether your new state recognizes it or not. Clearly once Section 3 is ruled unconstitutional, then Section 2 should fall once it is challenged. The Full Faith and Credit Clause would require nothing less.

    Unless and until Section 2 falls, then moving to a state that refuses to recognize same-sex marriages would mean that you would be treated as single by that state but married by the federal government and by all states that permit recognition. When driving cross-country, just keep a map handy and put a blue check mark on states where you’re married and a red ‘x’ on states where you’re single.

  108. hollywoodstein says:

    Take three.

  109. JamesR says:

    Can we use the term “Faggot Friday” again or is it too soon?


    On a related note, in my effort to prophylactically provide links to the previous usages of that phrase, for the startled, ignorant or easily offended, I found nothing.

    Not that the word hasn’t been used – but that much of this blog’s comment history seems to be absent WTF!?

    Because I know I’ve used it before, and have not been alone. Only two years ago. Here was the last: http://aravosis.wpengine.com/2010/10/friday-morning-open-thread.html

    And another http://gay.americablog.com/2010/03/cbs-on-split-between-hrc-and-activists.html There are more, I don’t want to link-overload.

    The posts are there, except they have “0 comments” (Now.) The Internet Wayback Machine also does not have them as it didn’t crawl the page(s) until 2012. They had plenty, as well as discussions of this issue and the F-word and when it was appropriate. Like when ‘friends’ are pretending to be friends.

    How do I know? – I have a copy of what I wrote because I am an info packrat, and don’t like to be accused of something I didn’t say, write, or espouse. (Like pedophilia to use a current example.)

    Years of comments are GONE. ??

    It’s like Americablog / Disqus has a worse problem than the White House’s Friday document dump. This is a large problem.

    If we forget, or in this info-age if our comments we may not have bothered to remember because we can always search for them are unsearchable, well… With the corollary of why bother repeating if it will be all forgotten anyway. ??

    Blaming Disqus is a start, but once seen all who see are at fault until it’s fixed. Unless all comments are really gone (!?) Perhaps that would be a good thread to have? Before this disappears too.

  110. Bill_Perdue says:


  111. Bill_Perdue says:

    An unexpected and small step forward.

    If we win some advances it will be because of the mass activism that began in the aftermath of Obama’s attack on marriage equality in California in 2008.

  112. FLL says:

    The administration’s argument now gives bigots in the 33 states without civil unions a further incentive to block any effort to pass civil unions (or even domestic partnership) legislation. As long as a state can avoid any recognition of same-sex couples, it’s off the hook. I can only hope that Justices Kennedy and Roberts open their eyes wide enough to see the Full Faith and Credit Clause, and understand what an epic fail this bogus eight-state solution is.

  113. Randy Riddle says:

    Yep. It’s just going to punt the whole thing back in court. Without recognition at the federal level, state by state recognition is worse than useless and an insult to LGBTs.

  114. Randy Riddle says:

    Gee, thanks Obama. Perhaps states like Mississippi or North Carolina will get around to having gay marriage in a century or two.

  115. FLL says:

    That’s what people will conclude now that the election is over and the excuses have disappeared.

  116. NCMan says:

    Really???? When did NOM state that they believe the court will strike down Prop 8? I haven’t seen that anywhere. Can you provide me with a link to their statement? Or, did someone just piss in your corn flakes this morning and you decided to take it out on me?

  117. karmanot says:

    Beause he does not except gay and equal?

  118. nicho says:

    I’ll take it, but I won’t be content. Some of us don’t have time waiting for gutless politicians to “evolve.”

  119. hollywoodstein says:

    Dear Mr. Moderator, May I please have my comment liberated from jail. I thought it was brave you let it out, and that it was forceful but fair in context, but then it disappeared down the memory hole again. Is there a way to discuss off page? Please advise.

  120. Unfortunately, only three of these coots can be considered old thanks to John and Sam.

    However, all five can be considered bereft of any cogent reasoning.

  121. jomicur says:

    I guess he’s STILL “still evolving.”

  122. jomicur says:

    I’ve always thought that Obama must have studied the Constitution for the same reason W.C. Fields said he read the Bible: looking for loopholes.

  123. Ryan says:

    I’m content to take what we can get today and fight again tomorrow. We are going to win this in the end, but we might have to wait for one of the five conservative Justices to be replaced before the full equality ruling comes.

  124. nicho says:

    Then you and NOM are on the same page.

  125. With a heightened voter-suppression horn?

  126. DRoseDARs says:

    So bold a move from a “fierce advocate.” Mr. President, you’re not running for re-election. You can stop being a p**** now…

  127. NCMan says:

    I have always figured that the Supreme Court would find the most limited course of action on Prop 8 and strike it down for CA only using the argument that once given marriage can’t be taken away. So, I think that the White House proposing that they go FURTHER to the 8 state solution would be a bigger win than I was expecting. I really have never thought the court would go as far as making marriage legal in all 50 states.

  128. hollywoodstein says:

    Well, the law will be whatever five old men on the court says it is.

  129. NCMan says:

    I’m still waiting for an answer to that question too. But, haven’t seen one to date. If you are legally married in NY and then move to PA, will the Federal Government still considered you legally married or not? Do you lose your federal rights when you move or not? Yes or no?

  130. hollywoodstein says:

    The message I get is that teh gay are still second class citizens.

  131. nicho says:

    Actually that would have been better. As it is, they played right into NOM’s state-by-state strategy. They have breathed new life into the hate groups. All they have to do is quote the president.

  132. hollywoodstein says:

    Oh, the messaging is going to be easy on this one.

  133. nicho says:

    Or a unicorn may have wandered into the conference room.

  134. nicho says:

    At least I’m glad I didn’t jump on the “wet your pants” bandwagon, when he gave a pretty speech with pretty words about LGBT rights. The Obamabots still have moist undies from that bait and switch.

  135. Thom Watson says:

    On the flip side, the brief does make a very strong case for heightened scrutiny. And under heightened scrutiny, it’s hard to see how any state bans could survive. So it may be that the Administration was trying to play it safe with the constitutional argument vis a vis federal vs. state determination, but still setting up a legal argument that would make sustaining a states-based solution all but impossible.

  136. hollywoodstein says:

    It’s embarrassing.
    It’s embarrassing that they labored over this.
    I would rather that they not have filed at all.

  137. hollywoodstein says:

    Avoiding the Roe v. Wade legacy? So last war.

  138. BeccaM says:

    Pretty much exactly what I was expecting.

    LGBT civil rights once again failing to rise to the level of universal federal protection…why? Just because.

  139. hollywoodstein says:

    Equal protection, depending where you live.

  140. nicho says:

    You understand it pretty well. It will be a mess — a total mess. And wait until, god forbid, you’re involved in settling an estate that involves property in more than one state.

    We ran into it just buying a house. California considered us married. HUD considered us two single people buying a house together. The county considered us married. The insurance company considered us single. I can’t remember what the bank considered us. The mortgage broker was going crazy trying to figure out what forms to use.

  141. hollywoodstein says:

    Okay, John, ask your people. Why split the baby?

  142. hollywoodstein says:


  143. hollywoodstein says:


  144. I have a question I can’t find the answer too and it doesn’t appear that this brief answers it? If DOMA section 3 should fall, does that mean if I’m married in NY and now the Federal govt would recognize it, and then we move to PA with no marriage, would the Federal govt still recognize us as married? If so, we would have federal benefits, but not State benefits. If that happens, it seems it would be even quicker that all States would get marriage. But if that isn’t the case, then that would completely prevent us from moving to a non marriage State as we would lose both State and Federal rights, so in effect we would be forced divorced.

  145. hollywoodstein says:

    Heard the N word used yesterday in a way I hadn’t heard it said since I was a child in the South. Ugly, hateful, spiteful word. Made me think about a lot of things. Made me think about Obama. Made me think about how far we’ve come.
    This makes me think how far we have to go.

  146. nicho says:

    The eight-state solution clearly violates the full faith and credit clause of the Constitution. What’s so freaking hard about that? He’s supposed to have been a constitutional law professor. I’m glad I didn’t take a course from him. What a waste of time that would’ve been. It would’ve been like taking an abstinence course from Bill Clinton.

  147. hollywoodstein says:

    Mother f*cker!

  148. FLL says:

    As I said on the other thread, the “eight-state” solution that would create marriage equality in eight additional states that
    already have civil unions but not marriage equality is a loser. Watered-down states rights’ BS. The Southern states and
    the Plains states get to keep their discriminatory amendments in their
    state constitutions. Thumbs down. If the Court wants to cater to the Southern and Plains states, that’s one thing, but why does Pres Milquetoast feel the need to? He doesn’t need their electoral votes anymore. On civil rights issues, states rights’ is for shmucks.

  149. nicho says:

    Just another calculating pol. Apparently, he’s OK with us having to carry a chart to try to figure out which states we’re married in and which we’re not. Maybe we should have left racial equality up to the states.

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