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Proposition 8 and the Obama Administration

by: tmess2

Sat Mar 02, 2013 at 11:33:09 AM EST

This past week the Solicitor General's Office filed an amicus curiae brief in Hollingsowrth v. Perry (the Proposition 8 case).  (The Solicitor General's Office is responsibile for filing all briefs on behal of the United States in the Supreme Court.  An amicus curiae brief is a brief filed by a non-party expresing that the non-party has an interest in the outcome of the case and giving that non-party's suggestions as to how a court can rule.  Over 70 such briefs have been filed in this case by various groups.)

There are five or six different approaches that the Supreme Court could take in this case.  Depending on the approach taken by the court, this decision could grant the right to marry to gays and lesbians in one state, in several states, or in all states.  The Adminstration's brief, while asking the Supreme Court to adopt a level of review that would logically lead to the recognition of the right to marry in only some states.  The key argument in the brief is that, because California (and seven other states) grants same-sex couples all of the rights of marriage but preclude them from getting married, there is no reason for denying the name "marriage" to these relationships other than to discriminate against gays and lesbians.  

This argument has both legal and political implications.  Legally, it offers the Supreme Court a middle position that would both expand the right to marry and would be appealing to the Justices.  Modern lawyers and judges are skeptical of anything that sounds like "separate but equal," and giving full recognition of "domestic partnerships" and "civil unions" with all the rights of marriage but denying the right to marry can easily be portrayed as a modern-day version of separate but equal.  If the court is reluctant to right an opinion that compels all fifty states to recognize the right to marry, telling eight states that, having essentially granted a right to marry, they have to go that final step and recognize is as marriage might make some swing Justices (Roberts and Kennedy) more comfortable.  

Politically, it is an intersting gamble.  For the past decade, civil unions have been a compromise position that, when all three options -- no marriage, civil union, or full marriage -- are polled, has tended to get the most support.  Civil union has been something that non-religious conservatives and libertarians could support as a just way of extending recognition to committed same-sex relations without having to deal with the religious traditions behind "marriage."  If the Supreme Court follws the Administration's suggestion, civil unions are no longer a permissible compromise position.  The political question is whether the discussion of civil unions have made enough people comfortable with recognizing same-sex relations that they are willing to support full marriage or do we still need it as an available compromise in many states.  (Of course, if the Supreme Court adopts the standard of review suggested by the Admnistration, full recognition of same-sex marriage in all states would be just a matter of time and further cases.) 

tmess2 :: Proposition 8 and the Obama Administration

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