Obama Urges Supreme Court To Overturn California Same-Sex Marriage Ban

By Robert Barnes for the Washington Post - February 28


The Obama administration told the Supreme Court on Thursday that California’s ban on same-sex marriage violates the Constitution’s guarantee of equal protection, a position that could also cast doubt on prohibitions in other states.

The administration did not endorse a constitutional right to marry that would apply nationwide. But its friend-of-the-court brief, a bold declaration of the administration’s interest in gay rights, said the court should review laws banning same-sex marriage under “heightened scrutiny.”

The administration’s entry for the first time into the legal battle over Proposition 8 — a voter initiative that amended the California Constitution in 2008 to limit marriage to a man and a woman — also carried great symbolic value for those advancing the cause of marriage equality.

The Obama administration did not have to file a brief in the California case but said the question of how the court reviews laws that “target gay and lesbian people for discriminatory treatment” is of great interest to the government.

In California’s case, Solicitor General Donald B. Verrilli Jr. wrote, the state offers same-sex couples domestic partnerships but withholds marriage.

“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,” the brief says. “It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing — petitioners’ central claimed justification for the initiative — but instead on impermissible prejudice.”

The government’s brief noted that seven other states have similar domestic-partnership laws: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. But it did not call for the court to overturn those laws.

In some ways, the brief marks a compromise between threatening the prohibitions on same-sex marriage that the vast majority of states have enacted and nudging along the number of states that allow such unions.

The administration has been under pressure from gay rights groups and others to enter the Proposition 8 case, especially after President Obama’s inaugural address, in which he said, “If we are truly created equal, than surely the love we commit to one another must be equal as well.”

Adam Umhoefer, executive director of the American Foundation for Equal Rights, called the brief “a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded.”

“It is an unprecedented call to action by our government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law,” he said.

Thomas Peters, communications director of the National Organization for Marriage and a supporter of Proposition 8, said his group “expects the Supreme Court to exonerate the votes of over 7 million Californians to protect marriage.”

“The President is clearly fulfilling a campaign promise to wealthy gay marriage donors,” Peters said in a statement. “There is no right to redefine marriage in our Constitution.”

The Supreme Court at the end of the month will consider two cases concerning same-sex marriage.

One addresses the Defense of Marriage Act, which restricts the federal government from recognizing same-sex marriages performed in those states where such unions are legal. The administration for two years has said that is unconstitutional, and a string of lower-court decisions have agreed.

The other is Proposition 8, which was passed by voters after the California Supreme Court recognized a right for same-sex unions under the state constitution. More than 18,000 couples were wed in the meantime.

A federal district court and the U.S. Court of Appeals for the 9th Circuit struck down the amendment.

While the DOMA case concerns couples who are already married, the Proposition 8 case offers the Supreme Court a chance to examine whether there is a constitutional right to marriage that cannot be denied by the states. But, as the administration’s brief indicated, there are more limited ways the court could rule.

Currently, the District, Maryland and eight other states allow same-sex marriages, while nearly all the rest forbid it.

Obama’s position on same-sex marriage is an evolving one, he has said. Although he opposed Proposition 8, he has never said he thought that the same-sex marriage issue should be decided nationally.

“I continue to believe,” he told ABC News last year when announcing his support of same-sex unions, “that this is an issue that is going to be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

Those who are defending Proposition 8 say the state’s acceptance of domestic partnerships proves that voters were motivated by a desire to protect traditional marriage, not to discriminate against homosexuals.

But the administration said that domestic partnerships prove just the opposite. California has “recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages; they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death,” the brief stated.

It said a reluctance to change the “traditional” definition of marriage is not a defense.

“Marriage has changed in certain significant ways over time — such as the demise of coverture and the elimination of racial restrictions on marital partners — that could have been characterized as traditional or fundamental to the institution,” Verrilli wrote.

A purported interest in responsible procreation and child-rearing cannot justify Proposition 8, the brief stated, because California confers “full rights of parenting and child-rearing on same-sex couples.”

And the administration said the court should not agree with an argument that it must respect “the will of the people” to amend the state’s constitution and to overturn the California Supreme Court’s decision allowing same-sex marriage.

“Promoting democratic self-
governance and accountability is a laudable governmental interest, but it is not one that justify a law that would otherwise violate the constitution,” Verrilli wrote.

In such cases, he said, the judiciary plays a special role in protecting minorities.

The administration’s brief is added to dozens that outside groups have filed in the same-sex marriage cases. Briefs have been submitted by states that allow such unions and those that forbid them; religious groups on both sides of the issue; Republicans who support same-sex marriage and conservatives who say it undermines a traditional way of life.

Labor unions and hundreds of major corporations weighed in on the side of same-sex marriage, for instance.

The AFL-CIO said its gay workers are economically harmed by laws that do not allow them to marry.

“These economic injuries are readily quantifiable in terms of the dollars gay and lesbian workers are forced to spend on higher costs and taxes, in the denials of access to publicly and privately provided benefits, and in the refusals of entry into and in the deportations out of the U.S.,” the union brief said. “These harms further extend into the physical workplace, where gay and lesbian workers often confront and navigate biases about their sexual orientation and the comparative worth of their personal relationships.”

The businesses, which included such giants as Microsoft and Nike and small businesses such as a winery in California, said restrictions against same-sex marriage create extra work for them — over insurance coverage and taxes, for instance — and force them to categorize workers differently.

“It puts us, as employers, to unnecessary cost and administrative complexity, and regardless of our business or professional judgment forces us to treat one class of our lawfully married employees differently than another, when our success depends upon the welfare and morale of all employees,” the brief stated.

Another is signed by more than 100 prominent Republicans, including Clint Eastwood and seven former governors, among them 2012 presidential candidate Jon Huntsman (although only a small number currently hold public office).

They tell the court that supporting civil marriage for same-sex couples is consistent with a “commitment to limited government and individual freedom.”

“Many of the signatories to this brief previously did not support civil marriage for same-sex couples,” the brief stated. But after states offered such unions, they said, they have “reexamined the evidence and their own positions and have concluded that there is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples.”

On the other side, a coalition of African American pastors told the court it should not draw comparisons to its 1967 decision in Loving v. Virginia, which struck down state bans on interracial marriage.

“The ruling in Loving was not revolutionary the way striking down the traditional male-female definition would be in the present case,” the brief stated. “The anti-miscegenation statutes in Virginia were at war with the core purposes of marriage — especially the fostering of responsible procreation and child rearing by biological parents.”

And 19 states, including Virginia, urged the court to overturn the 9th Circuit’s opinion, which it said overrode the will of California voters.

“The result is not merely vitiation of California’s co-equal sovereignty without a clear constitutional warrant,” the brief said. “It is disintegration of perhaps the most fundamental and revered cultural institution of American life: marriage as we know it.”

Obama’s Shifts Affect U.S. Legal Plan on Gay Marriage

by Adam Liptak for the New York Times 2/4/13:

WASHINGTON — The practice of law would be much more pleasant, many lawyers will tell you over a second Scotch, if it did not require clients. It is one thing to construct an airtight legal argument and quite another to deal with the demands of inconstant human beings.

Consider Solicitor General Donald B. Verrilli Jr.’s most prominent client, President Obama. In May, in announcing his support for same-sex marriage, Mr. Obama said the issue should be decided state by state. In his Inaugural Address last month, Mr. Obama seemed to make a case for a more national approach.

The timing was awkward. Mr. Verrilli is in the midst of considering what to tell the Supreme Court in a pair of momentous same-sex marriage cases to be argued in March. Just days before the inauguration, he met with lawyers challenging California’s ban on same-sex marriage, who urged him to weigh in on their side. He was noncommittal, but his client’s public marching orders until then had suggested that he should sit that one out.

Here is what Mr. Obama told Robin Roberts of ABC News in May: “What you’re seeing is, I think, states working through this issue in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is going be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

That reasoning fits tolerably well with the Justice Department’s position in one of the two cases before the Supreme Court, United States v. Windsor, No. 12-307. That case is a challenge to the constitutionality of the federal Defense of Marriage Act, a 1996 law that defined marriage as the union of a man and a woman in connection with federal benefits. The Defense of Marriage Act, Mr. Obama explained in May, “tried to federalize what has historically been state law.”

Mr. Verrilli will presumably make much the same point on March 27, when the Supreme Court hears arguments in the Windsor case.

But there is a second case, and there Mr. Verrilli faces tough choices. On March 26, the day before the argument about the 1996 law, the justices will hear Hollingsworth v. Perry, No. 12-144. It seeks to overturn Proposition 8, a voter initiative that banned same-sex marriage in California.

If marriage is a matter for the states, as Mr. Obama announced in May, you might think that California should be permitted to prohibit same-sex marriage.

The federal government is not a party to the California case, and it is not required to file a brief or to take a public position. Ms. Roberts asked Mr. Obama a direct question in May about whether he had given his lawyers instructions about what to do: “Can you ask your Justice Department to join in the litigation in fighting states that are banning same-sex marriage?”

Mr. Obama changed the subject.

All of this might have allowed Mr. Verrilli to concentrate on the case concerning the federal law and stay quiet in the California case. There is a precedent for this: the federal government took no position in 1967 in Loving v. Virginia, the case in which the Supreme Court struck down bans on interracial marriage. Nor did it weigh in on the last major gay rights case, Lawrence v. Texas, which in 2003 struck down state laws making gay sex a crime.

The solicitor general in 2003 was Theodore B. Olson. He is now in private practice and is one of the lawyers challenging the California ban on same-sex marriage. On Jan. 18, he and his colleague David Boies, along with lawyers from the San Francisco city attorney’s office, met with Mr. Verrilli to urge him to take a stand in the California case. Defenders of Proposition 8 made the opposite pitch a few days later.

Mr. Verrilli was noncommittal, but there is now reason to think that Mr. Olson will prevail in persuading Mr. Verrilli to ignore the precedent Mr. Olson had set. That is largely because Mr. Obama’s thinking on same-sex marriage continues to evolve.

In his Inaugural Address last month, Mr. Obama was no longer talking about leaving the issue to the states.

“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said, “for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

Mr. Verrilli has until the end of the month to file a brief in the California case. Paul D. Clement, a former solicitor general who represents House Republicans defending the 1996 federal law, said he detected some paradoxes in Mr. Verrilli’s predicament.

“It will be interesting in the end,” Mr. Clement said dryly at a Georgetown University Law Center forum last week, “if the litigation position of the Justice Department and the president’s position kind of realign.”

Mr. Clement said the solicitor general’s position always had weight at the Supreme Court. But he added that it may be less consequential in the California case than in some earlier ones, given the administration’s general, if nuanced, support for gay rights.

Thomas C. Goldstein, the publisher of Scotusblog and a lawyer who argues frequently before the Supreme Court, said the justices were not the only relevant audience for a brief from the Obama administration’s top appellate lawyer.

“Part of what is going on in the Inaugural Address and part of what would happen in a brief like that is a statement of what’s morally right and wrong,” he said. “It could matter to Americans much more than it matters to the Supreme Court.”

The Right’s Righteous Frauds

By Frank Bruni for The New York Times:

Say what you will about Bristol Palin, she’s a quick study. It didn’t take her long to master the ways of her elders on the censorious right and decide that personal circumstance and past error needn’t prevent someone from claiming righteous leadership. Uncle Rush must be proud.

Soon after President Obama stated support for same-sex marriage, Bristol publicly weighed in. Because, you know, the world was on tenterhooks.

In a blog post she focused on the reference that Obama made to his daughters — and to the same-sex parents of some of the girls’ friends.

“It would’ve been helpful for him to explain to Malia and Sasha that while her friends (sic) parents are no doubt lovely people, that’s not a reason to change thousands of years of thinking about marriage,” wrote Bristol, making her heady debut as the new Dr. Spock for a nascent millennium. She added that “in general kids do better growing up in a mother/father home. Ideally, fathers help shape their kids’ worldview.”

Fathers like...Levi Johnston? It’s with him that she conceived her child — out of wedlock, at the age of 17 — and by most accounts, his relationship with her and the Palin family isn’t any warmer than Juneau in January. A mother/father home is not what he and Bristol have succeeded in creating.

What’s more, she has made sure that their son, Tripp, will at some point be treated to a worldview-shaping image of Dad as something akin to a date rapist. That’s the description of him immortalized in her memoir, one of her many efforts to monetize her surname. It recounts the loss of her virginity as a result of getting drunk and blacking out in the company of Levi, who pounced. What a gift that narrative is to Tripp, now being hauled into a TV reality show, “Bristol Palin: Life’s a Tripp,” already in production. Little children are known to thrive in such environments.

I hesitated before picking on Bristol because she’s an easy target. It’s like shooting moose from a helicopter flying low over the tundra.

But she so perfectly distills the double standards and audacity of so many of our country’s self-appointed moralists and supposed traditionalists: hypocrites whose own histories, along with any sense of shame, tumble out the window as soon as there’s a microphone to be seized or check to be cashed. 

She proves that they’re not going away anytime soon — a new generation rises! — and that they haven’t been daunted by the ridicule justly heaped on Newt Gingrich during the Republican primaries, when he dared to cast himself as a religious conservative.

Certainly Rush thunders on. Last week he bellowed that Obama had decided to “lead a war” on traditional marriage. Seems to me Limbaugh started those hostilities long ago, if not with his first divorce then certainly with his second and third.

For entertainment at Wedding No. 4, to a woman 26 years younger than he is, he hired Elton John (who very questionably took the gig). Gays shouldn’t be allowed to tie the knot, but they sure can carry a tune.

More interesting than the tired, press-a-button condemnations from Bristol and Rush was Mitt Romney’s comportment. He didn’t hasten to turn same-sex marriage into a wedge issue, the way Rick Santorum urged him to, or use his commencement speech at Liberty University to fan the flames of hellfire.

He instead held back a bit, no doubt partly because his need at this particular juncture, as he recovers from the compromising and brutalizing primaries, is to pivot to the center, not cling to the right. I think Obama and his tacticians counted on as much.

And I think that the extent to which Romney continues to hold back will have enormous consequence for the Republican Party’s destiny.

Within its uppermost ranks are many champions of small government who squirm at the small-mindedness of the scowling theocrats in an increasingly uneasy coalition. These fiscal conservatives take advantage of the religious right’s political muscle but have reservations about its hectoring piety, and their own views on social issues are often moderate or somewhat liberal. Recall that Republican money played a pivotal role in the successful campaign for same-sex marriage in New York.

It came from donors who don’t want to see Romney take up an anti-gay mantle and who understand that a reputation for intolerance and bigotry imperils the future of the party, which they would like to orient away from stone throwers in glass houses. They’re Rush-fatigued. Palin-weary.

Bristol’s recent parenting advice to the Obamas extended into the realm of TV. She seemed to question whether they were watching “too many episodes of ‘Glee.’ ”

“Life’s a Tripp,” starring a single mom who once sold a family revelation to Us Weekly, will be more edifying, I’m certain. And it will showcase a woman who’s a shining testament to conventional, old-fashioned families.

Where's Our 'Fierce Advocate'?

This article about President Obama from the Washington Post demands that we ask similar questions about leadership here in Venango County.

Where are the local allies who will publicly stand with GLBT residents and help advocate for change,who will say that it is no longer acceptable that GLBT people live in the shadows, in the fear and isolation of the closet, because of the ignorance, bigotry and discrimination of a vocal minority with misplaced values ??

Where are our 'fierce advocates' ?

By Richard Socarides

In December, while trying to quiet the furor over his invitation of Rick Warren to take part in his inauguration, Barack Obama reminded us that he had been a "consistent" and "fierce advocate of equality for gay and lesbian Americans." But at the end of its first 100 days, his administration has been neither.

What makes this especially disappointing is that it comes during a crisis-driven "change moment" in our country's history that not only cries out for leadership but presents a particularly good climate for making substantial progress on gay equality.

As an adviser on gay rights to President Bill Clinton during his second term, I know how hard it is to achieve real progress. We learned that lesson acutely during Clinton's abortive first-term attempt to allow gays to serve in the military, an outcome for which he is still paying a steep legacy price.

But recent victories on gay marriage, a youth-driven paradigm shift in public opinion and the election of our first African American president make this a uniquely opportune moment to act.

I understand that the president has his hands full saving the economy. But across a broad spectrum of issues -- including women's rights, stem cell research and relations with Cuba -- the Obama administration has shown a willingness to exploit this change moment to bring about dramatic reform.

So why not on gay rights? Where is our New Deal?

It is the memory of 1993's gays-in-the-military debacle (and a desire never to repeat it) that has both the president's advisers and policy advocates holding back, waiting for some magical "right time" to move boldly.

This is a bad strategy. President Obama will never have more political capital than he has now, and there will never be a better political environment to capitalize on. People are distracted by the economy and war, and they are unlikely to get stirred up by the right-wing rhetoric that has doomed efforts in the past.

And people are willing to try new approaches. The court ruling legalizing gay marriage in Iowa represents a real opening, an opportunity to get "undecideds" to take another look not only at gay marriage but at gay rights in general. As Iowa Sen. Tom Harkin remarked, many Americans may be asking themselves, "If the [Iowa] Supreme Court said this, maybe I have to think anew."

Here is what Obama should do to seize this opportunity:


First, he should start talking about gay rights again, the way he did during the campaign. What made Clinton such a transformational figure of inclusion was his constant willingness to talk to and about gay people. When he said, "I have a vision and you are a part of it," you could feel his sincerity.

As president, Obama barely mentions gay and lesbian Americans. During his first 100 days, he has done so only while defending his selection of inauguration speakers. He was silent after the announcement of the Iowa decision -- one of the most important gay civil rights victories ever.

Second, he should move swiftly, as he promised during the campaign, to help secure passage of the bill now moving through Congress imposing new federal penalties for anti-gay hate crimes, as well as legislation allowing gays to serve in the military. Ten years have passed since Matthew Shepard was killed. We have endured 15 years of "don't ask, don't tell" discrimination. We have waited long enough.

Third, he should appoint a high-ranking, respected, openly gay policy advocate to oversee government efforts toward lesbian, gay, bisexual and transgender equality. Give this person access to policymakers, similar to what has been done on urban policy and for people with disabilities. This is especially important because, unlike Clinton, who had gay friends such as David Mixner, Roberta Achtenberg and Bob Hattoy around to nudge him, Obama has no high-profile gay senior aides with a history in the gay rights movement.

Finally, Obama should champion comprehensive, omnibus federal gay civil rights legislation, similar to the Civil Rights Act of 1964, outlawing discrimination based on sexual orientation and granting a basic umbrella of protections in employment, education, housing and the like (rather than the existing piecemeal approach to legislation). Such a bill should also provide for federal recognition of both civil unions and marriages as they are authorized by specific states.

Obama is in a good position, and the time is ripe for a new approach. Taking these steps might spare the country the trauma of devolving into a pervasive and divisive debate over gay marriage, which, after all, is not the only issue of concern to gay and lesbian Americans.

Gay voters who supported Barack Obama remain positive about him, and most are prepared to be patient. It's still early on gay rights for the Obama administration -- but now is the time to act boldly.

The writer, a lawyer in New York, served on the White House staff from 1993 to 1999, including three years as special assistant to President Bill Clinton.