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In upcoming Supreme Court fight, Obama lines up behind gay marriage

Published: Friday, March 1, 2013 9:26 a.m. CDT

(MCT) — WASHINGTON — The Obama administration on Thursday declared that gay marriage can be a right that deserves constitutional protection, supercharging a Supreme Court battle that started with California voters and is now shooting for the history books.

Shedding its earlier caution, the administration forcefully asserted in a key legal brief that the Constitution’s equal protection guarantees extend to same-sex couples seeking a California marriage license. The declaration was both voluntary, because the administration wasn’t required to take a position on the state’s Proposition 8, and emphatic.

“Proposition 8, by depriving same-sex couples of the right to marry, denies them the dignity, respect and stature accorded similarly situated opposite-sex couples under state law,” Solicitor General Donald Verrilli Jr. wrote.

The 33-page brief signed by Verrilli thrusts the administration into the potentially landmark gay marriage case to be heard by the court on March 26. It potentially puts the administration on the opposite side of 37 states that expressly prohibit same-sex marriage through either a statute or a provision in the state’s constitution.

Subtly, though, the administration indicates that the Supreme Court can focus on the “particular circumstances” found in California and seven other states that, likewise, grant domestic partnership rights, but not full marriage benefits. The designation of marriage, Verrilli noted, “confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”

More broadly, the administration’s argument is that any laws based on sexual orientation require “heightened scrutiny” from courts.

California in 2008 joined the roster of states that banned gay marriage when voters, by a 52 percent to 48 percent margin, approved the ballot measure amending the state’s constitution to say that “only a marriage between a man and a woman is valid or recognized.” The proposition trumped an earlier state Supreme Court ruling that concluded same-sex couples had a constitutional right to marry.

“Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing, (the) central claimed justification for the initiative, but instead on impermissible prejudice,” Verrilli wrote.

Verrilli further cited a “significant history of discrimination” against gays and lesbians, as well as the observation that gays and lesbians are a “minority group with limited power to protect themselves from adverse outcomes in the political process.”

Family Research Council President Tony Perkins denounced the administration’s move as a “brazen” flip-flop caused by pressure from “supporters of marriage redefinition.” Perkins’ conservative group and dozens of others have filed their own briefs supporting Proposition 8.

The high court’s March 26 oral argument in the Proposition 8 case, called Hollingsworth v. Perry, is one of two cases relating to gay marriage to be heard by the court in March. The other, challenging the Defense of Marriage Act’s prohibition on extending federal benefits to same-sex married couples, will be heard March 27.

If they want, justices could sidestep the big issues and decide either case along narrow grounds. They could even conclude, in either case, that the parties involved lack the legal standing to sue.

The Obama administration, too, had a choice in how to handle the politically sensitive Proposition 8 case. Unlike the Defense of Marriage Act, which was passed by Congress in 1996, Proposition 8 involved state law, and administration officials could have sat out the state fight altogether.

On the merits, the administration could have chosen to take a less aggressive stance, similar to the Ninth Circuit Court of Appeals.

The Ninth Circuit upheld the San Francisco-based trial judge who struck down the state ballot measure, but in a way that applied the ruling strictly to California. Rather than finding a broad constitutional right to same-sex marriage, the appellate panel concluded simply that California could not retract a right once it had been extended.

Gay rights groups, which have been big Obama supporters, had vigorously advocated an expansive attack on Proposition 8. Obama himself, acknowledging that his views had been “evolving,” declared last May that he had come to support gay marriage after earlier opposing it. But until Thursday, he had not fleshed out the extent of his views. Last year, the president suggested it was not a matter requiring federal involvement.

White House spokesman Jay Carney declined to comment on the case, referring reporters to the Justice Department. The administration spelled out its views in an amicus brief, filed on the last day such friend-of-the-court documents could be lodged in opposition to Proposition 8. There have been many others.

Briefs from opponents included one filed by openly gay California Assembly Speaker John A. Perez and another filed by the San Francisco-based Bay Area Lawyers for Individual Freedom. On Wednesday, California Attorney General Kamala Harris filed the state’s brief opposing Proposition 8.

Nineteen states, including Alaska, Idaho, South Carolina, Texas and Kansas, joined in one brief urging the court to uphold a state’s authority to write its own marriage laws. Another brief, filed by Parents and Friends of Gays and Ex-Gays, recounted the experiences of people who said they “made the personal decision to leave homosexuality.”

“The definition of marriage as a union between a man and a woman has prevailed throughout this nation since before its founding,” attorney Charles Cooper wrote in the primary brief supporting Proposition 8, adding that “the record of human history leaves no doubt that the institution of marriage owes its existence to the undeniable biological reality that opposite-sex unions, and only such unions, can produce children.”

Countering the Proposition 8 arguments, numerous amicus briefs from groups ranging from 278 corporations to former military leaders and the AFL-CIO have flowed in. But because of its institutional stature — coming from an office sometimes dubbed “the 10th justice” — the solicitor general’s amicus brief has been particularly anticipated.

“The exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest,” Verrilli wrote.

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