Prop 8: Obama will file pro- gay marriage brief

UPDATE: The Prop 8 brief has been filed.  You can find our story on it here.

Pete Williams at NBC News is reporting that President Obama will file an amicus brief today in the Proposition 8 (Prop 8) gay marriage case being heard by the Supreme Court at the end of March.

The administration had been surprisingly quiet and evasive on the issue up until this moment. Further down in this story I look at the ramifications of that apparent indecision.

But Williams says the brief will be filed later today.  As we noted yesterday, the deadline for the brief is today.

This is somewhat odd as only moments ago, White House press secretary Jay Carney gave evasive answers about the Prop 8 brief to both the Associated Press and the Chicago Tribune, according to Chris Johnson of the Washington Blade, and confirmed by the video of today’s White House briefing.

White House evasive less than hour before Prop 8 brief announced

Christi Parsons from the Chicago Tribune/LA Times asking a question of White House press secretary Jay Carney today:

CHICAGO TRIB: I know you want to leave questions about the Prop 8 brief to the DOJ, but as the President’s spokesman I wonder if you can just tell us a little bit about his deliberation on this…

Jay CarneyWHITE HOUSE: I really don’t have anything for you on it, the President obviously has expressed an opinion in the past on this issue as a matter of policy, but when it comes to a legal and constitutional issues around it, that’s a jurisdiction that resides with the Department of Justice, so I dont have anything for you on it.

CHICAGO TRIB: Whether to weigh in wouldn’t be a policy decision made by the President?

WHITE HOUSE: I just dont have anything more for you on it, I would refer you to the DOJ.

The brief matters, and was urged by the lawyers opposing Prop 8 in the case, and by Evan Wolfson, the top gay rights lawyer fighting for marriage equality all of these years.

Earlier this week, pressure grew on the administration to file a brief as 60+ companies and over 100 current and mostly-former Republican officials, many quite prominent, filed their own briefs pro- gay marriage briefs in the case.

Downside to waiting till last minute to announce Prop 8 brief

There’s a downside to having waited until the last minute to both file the brief, and to let it be known publicly that a brief would be filed.  One of the first responses I got on Twitter to the news that the administration would be filing a brief was this:

It looks like the administration was vacillating on whether to file a brief up until the last moment.  And while giving some due thought is always wise, when you’re evasive about the issue for two months, and then break the news three hours before the filing deadline, it looks “weird.”

Why do looks matter when the decision, in the end, is the right one?  Because in politics, it’s important to get credit for good deeds.  That credit motivates even more good deeds.  And far too often, the administration gives the appearance of having been dragged to a certain policy position, rather than embracing it whole-heartedly on its own, early and often.  Thus, they don’t get full credit, which makes them, potentially, less motivated to help us in the future.  There’s also an opportunity cost for the Democratic party, as they miss out on the full credit, full thankfulness, they could be receiving from the gay community.

Ambivalence is what many gay people perceived during the administration’s early inaction on gay rights during the first two years of the President’s first term, and especially about how the administration handled the repeal of Don’t Ask, Don’t Tell.  The initial plan was to let DADT repeal be dealt with by Congress in 2011, which would have been a disaster since many of us worried, correctly in retrospect, that Democrats were in danger of losing one or both houses of Congress in the November 2010 elections.  Many feel that it was pressure from outside activists that finally forced the administration’s hand, and got DADT repeal done before the new Congress came to town in early 2011.

The same thing happened with the administration’s infamous brief defending the anti-gay Defense of Marriage Act (DOMA) brief in June of 2009.  We argued early on that it was not legally necessary for  the administration to defend DOMA in court, and we were told, repeatedly, by the Department of Justice, and the administration overall, that we were wrong.

We now know that they were wrong.  But it took them nearly two years to come around.  And during that time, the administration lost a good deal of goodwill, and the damage was unnecessary.

You get far more credit for doing the right thing early, than late

Don’t get me wrong.  This is great news that the administration will be filing a brief in the Prop 8 case.  But politics is about the long-term, not just the short-term.  And I don’t like to see good deeds done badly, and opportunities missed.  The Obama administration is often its own worst enemy in how it handles gay civil rights policy.  The right thing often happens at the wrong time, and in the wrong manner.  I just think they could handle things so much better, and get more credit for the good that they do, if they faced up to this fact.

CyberDisobedience on Substack | @aravosis | Facebook | Instagram | 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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79 Responses to “Prop 8: Obama will file pro- gay marriage brief”

  1. hollywoodstein says:

    And Hagel, ugh.

  2. hollywoodstein says:

    I know, I know.

  3. FLL says:

    I certainly can see your criticism of the administration leaving as a mystery the fact that it was filing a brief at all. That should have been done in advance. My only remark was about the usual habit of filing on the due date.

  4. rmthunter says:

    I haven’t read it yet, but here:

  5. hollywoodstein says:

    And that is the big WHY? Are the wingnuts right and Obama is going to run for another term.

  6. hollywoodstein says:

    And I’m done.

  7. hollywoodstein says:

    And LEGACY.

  8. hollywoodstein says:

    And history.

  9. hollywoodstein says:

    At no political cost, and great benefit.

  10. hollywoodstein says:

    Well since both sides hate me I must be doing something right.

  11. hollywoodstein says:

    Karmanot rules!

  12. rmthunter says:

    Politics is also about appearances, and you have a good point there — perceived ambivalence is real ambivalence, just as perceived weakness is real weakness.

  13. FLL says:

    The “eight-state” solution (if that is what the administration is in favor of) would create marriage equality in eight additional states that already have civil unions but not marriage equality. That is still a watered-down form of states rights’ BS because the Southern states and the Plains states get to keep their discriminatory amendments in their state constitutions. Thumbs down.

  14. karmanot says:


  15. karmanot says:

    “bona fide bigots and their enablers–baby boomer strategists who will
    never believe that younger generations aren’t as repulsed by us as they
    are.” Or as repulsed by you as am I.

  16. hollywoodstein says:

    Yeah, yeah, we know, we can’t be seen as meddling with the court.

    You could figure it out if you wanted to.

  17. hollywoodstein says:

    Hi there, WH digital guy(s)gal(s).

  18. karmanot says:

    Ain’t it the truth! Like mine they probably drink Foldger’s Instant coffee.

  19. hollywoodstein says:

    And it has the advantage of being the right thing to do.

  20. hollywoodstein says:

    And you’re right, it’s not that they treat the gay as toxic per se, rather they are careful generals fighting the last war. The new war is won. The hard part is done and Obama just has to declare victory.

    I want a nationally televised speech on the topic. Should take five minutes. Make the case for doing the right thing. Simple.

  21. karmanot says:

    That thread has a dripping wet, used up bag at the end.

  22. karmanot says:

    exactly! It’s the same argument that bigots use to say that they love their gay family members, but condemn them to hell for their ‘gayness’ and being authentic individuals.

  23. karmanot says:

    “Just admit it, you don’t like the “Black Man” OK, just remove the quotes and put man and black in lower case and I’m totally there. I refuse to make any joke about Obozo being both black and white thus offending any members of the Mephitis mephitis family.

  24. hollywoodstein says:

    I am sympathetic to your analysis,and your situation.
    The flag goes up for this reader when you talk about the administration reluctantly doing these things like DADT, when it is pretty clear that DADT repeal happened in spite of the efforts of the administration, and not because of the administration. Granted, Obama lifted the pen and signed. But the Obama administration did not want to repeal DADT when it was repealed, and was against it even faced with enormous pressure until it became a fait accompli. They should not get any credit for that.
    Has Obama openly endorsed marriage equality, or has he only endorsed a state rights version of marriage equality which is not marriage equality at all. I’ll go along with his state’s rights version of civil rights so long as we can have a state’s rights version of slavery.

  25. FLL says:

    OK,I’ll agree that it would look more effective to have at least announced much earlier that the administration would be filing a brief. Not doing that was a mistake. Once the fact that the administration was filing a brief was no longer a mystery, they could file on the due date like everyone else.

  26. Suffice it to say I’d never get into off the record conversations I’ve had with anyone, but let’s just say that today’s announcement of the brief is not the first time I’ve chatted about this issue with anyone inside or outside the administration :) I stand by my concern that this did not seem to be a done deal until just now.

  27. Yes. Clearly this was not a case where they decided 2 months ago that they were going to file the brief, and simply kept is closely guarded until 3 hours ago.

  28. That’s funny, since the Obamabots are already attacking me for being too mean about this. I should have figured the other side would chime in any moment as well :) And my post makes clear that there’s some kind of weird vacillation and reticence on gay issues, at the very least, though I think it goes far beyond gay issues. And that’s completely consistent with your analysis, above. I think you overstate the case when you claim that the Obama administration treats us as a toxin. It’s far more complicated than that, if only evidenced by the fact that the President has openly endorsed marriage equality. You don’t do that if you think it’s politically “toxic.” That’s not to say that some in the administration don’t think we’re politically toxic. Some may. But to simply suggest that they treat us as politically toxic, when they’ve actually ended up doing some pretty significant things for us, albeit with a lot of pressure, and somewhat ambivalently at times, doesn’t explain what’s going on, and is contradictory. Ambivalence, approach-avoidance is more the order of the day. I don’t like it, thus my post. But let’s not pretend that it’s not a good thing that they’re filing the brief, and the other pro-gay steps they took weren’t good. I’m happy to criticize the administration when it’s merited, and I’d bet money that they’re not happy about this post, but I am not and never have been either knee-jerk pro Obama or knee-jerk anti-Obama. I call things how I see them, and apply pleasure when necessary, rather than just for fun. I stand by what I wrote above.

  29. FLL says:

    In this case, the states rights’ argument is for worthless shmucks. Hope the Pres doesn’t prove to be a worthless shmuck.

  30. BeccaM says:

    Yeah, I read the comment and immediately thought “projection, much?”

  31. slavdude says:

    Heh, “left behind”. Put them together with the “right behinds” in Congress and we have a party of asses.
    That said, I agree the administration will probably waffle on this, not that amicus briefs have any real influence anyway. The SCOTUS will vote how it votes.

  32. nicho says:

    Well, the big hand is on the 12 and the little hand is on the 5 in DC. What’s the story?

  33. nicho says:

    Normally, you don’t want to file a brief too early to tip your hand. This isn’t one of those cases.

  34. hollywoodstein says:

    Btw, hate the use of optics on politics. Not as bad as Haig mainstream, impacted for things that are merely affected.

  35. hollywoodstein says:

    FLL, love your work, and I’m otherwise with you on this, but the admin was aware well in advance that there were optics to the timing of the filing. In other words, the timing meant something.

  36. hollywoodstein says:

    I’m praying Kennedy doesn’t want to be on the wrong side of history, and Roberts wants some more capital for his corporatist agenda.
    Otherwise, it is going to be one heckuva mealy mouthed opinion.

  37. hollywoodstein says:

    What? You’ll lose Scalia? He’s lost his mind already.

  38. hollywoodstein says:

    Obama should give a well timed, broadcast network speech on this laying out the basic case that this is what America is all about, and the right thing to do. Dare the Supremes to vote for bigotry after that.

  39. Ninong says:

    Tearoom is trying to play the race card. LOL

  40. hollywoodstein says:

    Politically, it’s super stupid not to go to the wall with this. A win on this one would tear one of the nuts out of the teabag arsenal. They won’t be able to gay bait anymore on state referendums, etc., because THE CONSTITUTION.
    It will emasculate them on this issue, and they’ll have to find something else to divide the rubes.

  41. hollywoodstein says:

    So this is what it looks like when I enable a runaway thread.

  42. hollywoodstein says:

    If there is a legal eagle angle on this I’d love to hear it.

  43. hollywoodstein says:

    Hafta agree.

  44. PeteWa says:


  45. Ninong says:

    Actually what he claimed was that he was in favor of passing a law that would grant gays and lesbians all of the same rights as married couples, so that would presumably have covered all of those federal rights. However, it may not have prevented private insurance companies from refusing to do the same unless that was specifically spelled out in the law. Especially if the insurance company was a state chartered company in one of the Deep South states. In fact, some of those Deep South states may have resisted granting equal state benefits to couples in a civil union no matter what federal law said. As an example, look at how some Southern governors are proudly proclaiming that they won’t go along with Obamacare. Or they won’t allow the enforcement of any new federal laws in their state that the NRA tells them infringe on the Second Amendment.

    That issue came up shortly after one of the states passed a civil unions law that stated that couples in a civil union were to receive the same rights and benefits afforded married couples in that state. Some insurance companies complied and changed their policies but others refused to go along on the basis that they were national companies governed by federal law and federal law does not recognize civil unions.

  46. Skeptical Cicada says:

    Especially since their boss, Eric Holder, shares their revulsion.

  47. Skeptical Cicada says:

    Good point. This administration has done a terrible job of putting its stamp on the agencies.

  48. Skeptical Cicada says:

    Call that DOJ “waffling” what it is: Eric Holder’s anti-gay bigotry.

  49. hollywoodstein says:

    Even the republicans are re-branding on this issue. For crissakes, evolve already.

  50. Skeptical Cicada says:

    It’s not the filing date the John is questioning. It’s the keystone cop handling and uncertainty whether they were even going to file anything.

  51. hollywoodstein says:

    For a man whose own liberty would once have been subject to a state’s rights popularity contest, he has always been a coward on this issue, leading from behind.

  52. hollywoodstein says:

    Obama evolved to a state’s rights version of equality because big gay checkbooks remained shut. That is what caused that announcement.
    Let us hope he continues to evolve.

  53. Don Chandler says:

    Yes, I remember. “like it or Not”, The whole prop 8 saga is twisted and bizarre.

    I liked these paragraphs:

    The poll also reported support among all racial and ethnic groups, with a notable increase among a category defined as African American, Asian American and other non-Latino minorities – from 41 percent in 2010 to 64 percent this month.

    Post-election polls in 2008 found strong African American support for Prop. 8, following a campaign by black clergy members opposed to same-sex marriage. A key reason for the recent turnaround, Kendell said, has been President Obama’s “speaking out forcefully for the freedom to marry” in his endorsement of same-sex marriage rights in May.


    Obama has been influential. But yeah, can’t say much until they file it if they are file it.

  54. Skeptical Cicada says:

    I’m surprised that massive race chip on your shoulder hasn’t broken your fucking back by now.

  55. FLL says:

    I only disagreed with John about the usual habit of filing a brief on the day it’s due. Your point is very well taken, but it has to do with the actual content of the brief. I’m curious to read it.

  56. Skeptical Cicada says:

    Sorry, John, but you are spinning a bit. Your criticism sounds like a self-evaluation that says one’s “negative” is that “sometimes I’m just so committed to the mission that my personal life suffers.” Lol! Give us a break!

    The problem is NOT that ingrate gays misperceive how fabulous the administration is. That’s been a self-serving Obamabot trope from day one. The problem, which you’re drawing attention away from, is that the administration obviously remains deeply divided over gays, manifestly has huge fights over every significant pro-gay step, and continues to treat us as political toxin requiring special precautions in handling.

    There obviously remains a strong element composed of bona fide bigots and their enablers–baby boomer strategists who will never believe that younger generations aren’t as repulsed by us as they are. Eric Holder is an obvious example–a man who can barely stand to grunt out the word gay. The question is why this administration continues to tolerate the anti-gay advice of these people.

  57. nicho says:

    As John said, there is a downside of an image. If the arguments from Obama merely parrot what the Republicans or corporations said in their briefs, it loses a lot of its luster. Kind of a “Me Too” brief. It makes his arguments irrelevant and makes him look weak.

  58. nicho says:

    I come from a family of Teabaggers (unfortunately) so they don’t scare me.

  59. nicho says:

    Let’s not discount the Cheney/Bush “left behinds” that are poisoning all of the agencies.

  60. nicho says:

    Which of course wouldn’t have worked because many states, and most
    insurance companies, have laws and rules that apply specifically to
    married couples.

    Not to mention the 1,500 or so federal benefits that are specifically linked to “marriage.”

  61. hollywoodstein says:

    Interesting, I heard a Bush moles at DoJ were dragging their feet in the preparation of the brief story. Alas, I am afraid it is our weasels not their moles.

  62. Ninong says:

    I thought Obama had changed his mind when he finally came out in support of marriage equality (gay marriage)? It seems to me he went through a minimum of three distinct phases. There was the fierce-advocate-for-equal-rights-for-gays phase during the 2008 campaign, followed by the not-so-fierce President who quietly removed some of his campaign promises from the White House website and then finally the evolved Obama who fully supports gay marriage.

    Shortly after he took office in 2009 we started hearing a nuanced explanation of what he meant by equal rights for gays. He meant all of the rights and benefits as long as nobody called it marriage. Which of course wouldn’t have worked because many states, and most insurance companies, have laws and rules that apply specifically to married couples. That’s why many people in civil unions were excluded from certain state benefits available to married couples and why they were not covered by insurance polices that would otherwise cover the spouse in a legal marriage.

    That second phase lasted a long time… too long! Then, after all of the polls continued to show growing support for marriage equality for gays, he and his campaign advisers decided it would be better to be for it and say so before the November election. The people who would be pissed off by that anouncement weren’t going to vote for him anyway and the people who favored full marriage equality might be energized to go to the polls and vote.

    If his amicus brief supporting Prop. 8 is narrowly written, it could indicate his professional opinion as a constitutional law professor or it could indicate a wavering in his support for unqualified full equality. To tell you the truth, I have given up on trying to figure out the true Barack Obama. It’s clear that he was way too over-confident during the first year of his first term and that may have influenced his plans. He wanted to avoid pushing the gay rights issue too soon because he knew how much of a headache that caused Bill Clinton, resulting in the idiotic DADT compromise. Remember all the problems caused by Democratic senators like Sam Nunn? The White House’s official token gay person was saying stupid stuff like “before the sun sets on this administration” all of you will be pleased with the final results. Then he refused to explain whether that meant before the end of a first term or a second.

    Obama clearly was pissed that Democratic leaders in the House and Senate forced his hand on the DADT repeal issue. He did not want that to be taken up before the mid-term elections. Which, as it turned out, would have been a disaster since the Democrats lost horribly in the House. None of that stopped Obama from taking full credit for passing the repeal of DADT. In other words, he signed the bill.

    So I don’t know what he really thinks on the issue of gay marriage. That’s like trying to figure out just how much Obama agreed with what Rev. Jeremiah Wright was preaching all those years. After he finally cut his ties to Wright, he tried to pretend that they went there because they liked the choir.

  63. nicho says:

    There was a majority of support for same-sex marriage in CA when Prop 8 was voted in. Many people who had no objection to same-sex marriage voted for Prop 8 because they were told that if they didn’t, their churches could be shut down and their ministers sued or arrested — and that kindergarten children would have to be taught about gay sex. Those were the lies perpetrated by the Mormon cult, the Catholic clergy, and the evangelical ministers.

  64. jomicur says:

    Careful, or that Tea Bag idiot will call you out for the racist you must be for daring to criticize the self-described Reagan Republican in the White House.

  65. Only possibility anyone can figure out is that perhaps they think by weighing in here they’re undercutting themselves somewhere else, on some other issue. No one really understand why this would be a concern, but there you have it, as a possibility.

    I suspect more BS waffling from DOJ, as always. It was DOJ that claimed they had to legally defend DOMA, when they didn’t. So that’s my usual suspect.

  66. FLL says:

    I don’t sense anything amiss with the timing. There were dozens of briefs filed in opposition to Prop 8, and the vast majority were filed today, the due date, which I think is normal procedure. As I understand, lawyers almost always take advantage of all the time available to work on a brief. In court cases, there is really no advantage in filing a brief early. I’m pretty sure I understand this aspect of the legal system correctly. Of course, we have no idea what the contents of the brief are. We’ll see.

  67. nicho says:

    Yeah, this is the same guy who said that if workers were fighting for their rights, he would be the first one to put on a comfortable pair of shoes and hit the sidewalk.

    When workers in Wisconsin were in trouble, he put on a comfortable pair of golf shoes and hit the links.

  68. nicho says:

    Kamala Harris, California AG, files a 45-page brief in opposition to Prop H8

  69. nicho says:

    “Tea time” When has anything or anyone related to “Tea” made any sense?

  70. hollywoodstein says:

    True dat. Judgment reserved ’till I read the brief. If it is not full throated endorsement of equality I’ll begin to think Obama is a closeted homophobe.

  71. What the fuck are you even talking about?

  72. Don Chandler says:

    There is no downside. Even polls are showing huge support for marriage equality in California:

  73. hollywoodstein says:

    Can someone please explain to me what the political downsides to the administration doing the right thing could possibly be, short term or long term?

    They do lose points for being dragged over the line by Congress on DADT, preferring not just to not lead, but to kick the can. And then taking credit for something they preferred not to happen then.
    They do lose points for their earlier brief behavior and for going to the wire with this brief as if it is a close last minute call.

    Even if you consent for the sake of argument that crass political considerations are valid on an issue of fundamental human rights, what could possibly be the downside for the administration or even the national party. Did Boehner threaten to have the vapors in the budget talks?

    The optics also could matter to an on the fence Justice, who sees that even a Dem administration not facing re-election isn’t so sure about this politically.

  74. nicho says:

    What an idiot!

  75. BeccaM says:

    Aye…I remain concerned that the remarks from the other day, that the administration was trying to find “some solution other than full equality,” resulting in more decades of inequality and discrimination.

  76. jomicur says:

    I love the way you always put “Black Man” in quotes, as if you don’t think Obama is really black. Why the veiled racism?

  77. TeaTime says:

    “…I’ll be among the first to give them full credit.” — also have a problem being truthful. Cognitive Dissonance is so applicable — how do you get dressed in the morning? Just admit it, you don’t like the “Black Man” but you want (otherwise you wouldn’t care, require, or ask for) his help in reaching LGBT goals!

  78. jomicur says:

    Let’s wait till it actually happens before we get excited about it. If they actually file the brief, I’ll be among the first to give them full credit. But this president has disappointed me far too many times for me to get worked up about media rumors or White House promises. (Remember “I will not sign any health care bill that does not include a public option”?) Actions count. I’ll wait and see, thanks.

  79. nicho says:

    Here’s hoping it’s in our favor — and not his “states’ rights” schtick.

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