(Businessweek)
President Barack Obama’s administration urged the U.S. Supreme Court to reinstate same- sex marriage in California, calling for broad constitutional protections that ultimately could let gays marry nationwide.
The filing adds a new and powerful voice behind the legal bid for same-sex marriage. The administration stopped short of directly calling for that right across the U.S., saying the court should focus on “the particular circumstances presented by California law.” At the same time, the government’s reasoning would leave the 41 states that ban gay marriage little room to defend their laws.
The designation of marriage “confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match,” U.S. Solicitor General Donald Verrilli argued.
The administration said gays should be afforded special constitutional protection, known as “heightened scrutiny,” much as racial minorities and women are under the Constitution’s equal protection clause. That would shield gays against discrimination in housing and employment, as well as marriage.
The brief “creates a clear path for marriage equality across the United States,” said Theodore Boutrous, one of the lawyers challenging the California ban, known as Proposition 8. “The arguments from start to finish would apply to other states.”
Charles Cooper, a lawyer representing the defenders of the California ban, said he didn’t have a comment on the brief.
Courting Administration
The 33-page filing came just hours before the court’s deadline yesterday, ending months of White House and Justice Department deliberations. Both sides in the California case met with Verrilli in January to seek the administration’s support. The White House had the option of staying out of the case.
The brief was one of a slew this week to call for same-sex marriage rights -- a move aimed at influencing the court and particularly Justice Anthony Kennedy, the likely swing vote.
One brief came from dozens of publicly traded companies, including Apple Inc. (AAPL) and Morgan Stanley (MS), while a second was filed on behalf of scores of prominent Republicans, including seven former governors and actor Clint Eastwood.
Fourteen states also are backing gay marriage at the high court. They include California and four other states that currently don’t offer same-sex marriage licenses: Delaware, Illinois, New Mexico and Oregon. A group of 13 states led by Massachusetts argued that Proposition 8 “codifies the second- class status” of gays and their families.
March Argument
The justices will hear arguments on March 26 on Proposition 8, the 2008 ballot initiative that halted gay marriage after it was allowed for five months following a California Supreme Court decision. Yesterday’s filing means Verrilli, Obama’s top courtroom lawyer, will probably take part in that session, making the case for gay marriage in the nation’s most-populous state.
Obama and Verrilli “have taken another historic step forward consistent with the great civil rights battles of our nation’s history,” said Chad Griffin, president of the Human Rights Campaign, which supports gay marriage.
The activists challenging Proposition 8 are asking the court for a sweeping ruling that would force all 50 states to allow such unions. Nine states and the District of Columbia now permit same-sex marriage.
Eight States
The Obama filing hinted at one path for the court that might quickly boost that number to 17, an approach that has been dubbed the “eight-state solution” by Kenji Yoshino, a professor at New York University School of Law.
The administration said those eight states -- California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island -- improperly let gay couples form partnerships that have all “substantive rights and obligations of marriage,” without marriage itself.
“Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection,” Verrilli argued.
President Barack Obama’s administration urged the U.S. Supreme Court to reinstate same- sex marriage in California, calling for broad constitutional protections that ultimately could let gays marry nationwide.The filing adds a new and powerful voice behind the legal bid for same-sex marriage. The administration stopped short of directly calling for that right across the U.S., saying the court should focus on “the particular circumstances presented by California law.” At the same time, the government’s reasoning would leave the 41 states that ban gay marriage little room to defend their laws.
The designation of marriage “confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match,” U.S. Solicitor General Donald Verrilli argued.
The administration said gays should be afforded special constitutional protection, known as “heightened scrutiny,” much as racial minorities and women are under the Constitution’s equal protection clause. That would shield gays against discrimination in housing and employment, as well as marriage.
The brief “creates a clear path for marriage equality across the United States,” said Theodore Boutrous, one of the lawyers challenging the California ban, known as Proposition 8. “The arguments from start to finish would apply to other states.”
Charles Cooper, a lawyer representing the defenders of the California ban, said he didn’t have a comment on the brief.
Courting Administration
The 33-page filing came just hours before the court’s deadline yesterday, ending months of White House and Justice Department deliberations. Both sides in the California case met with Verrilli in January to seek the administration’s support. The White House had the option of staying out of the case.
The brief was one of a slew this week to call for same-sex marriage rights -- a move aimed at influencing the court and particularly Justice Anthony Kennedy, the likely swing vote.
One brief came from dozens of publicly traded companies, including Apple Inc. (AAPL) and Morgan Stanley (MS), while a second was filed on behalf of scores of prominent Republicans, including seven former governors and actor Clint Eastwood.
Fourteen states also are backing gay marriage at the high court. They include California and four other states that currently don’t offer same-sex marriage licenses: Delaware, Illinois, New Mexico and Oregon. A group of 13 states led by Massachusetts argued that Proposition 8 “codifies the second- class status” of gays and their families.
March Argument
The justices will hear arguments on March 26 on Proposition 8, the 2008 ballot initiative that halted gay marriage after it was allowed for five months following a California Supreme Court decision. Yesterday’s filing means Verrilli, Obama’s top courtroom lawyer, will probably take part in that session, making the case for gay marriage in the nation’s most-populous state.
Obama and Verrilli “have taken another historic step forward consistent with the great civil rights battles of our nation’s history,” said Chad Griffin, president of the Human Rights Campaign, which supports gay marriage.
The activists challenging Proposition 8 are asking the court for a sweeping ruling that would force all 50 states to allow such unions. Nine states and the District of Columbia now permit same-sex marriage.
Eight States
The Obama filing hinted at one path for the court that might quickly boost that number to 17, an approach that has been dubbed the “eight-state solution” by Kenji Yoshino, a professor at New York University School of Law.
The administration said those eight states -- California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island -- improperly let gay couples form partnerships that have all “substantive rights and obligations of marriage,” without marriage itself.
“Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection,” Verrilli argued.
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