WASHINGTON – The Supreme Court gave itself plenty of room to maneuver when it agreed on Dec. 7 to review the issue of same-sex marriage. The justices could decide one of the great political and civil rights questions of our time, rule narrowly on the two cases it accepted or even punt, on the grounds that the cases are not properly before them.
But the court may have made it more difficult for President Barack Obama to avoid taking a stand on whether it is unconstitutional to exclude same-sex couples from the fundamental right to marry no matter where they live.
Obama was both elected and re-elected with strong support from the gay rights movement. In May, he became the first president to endorse same-sex marriage, saying he had undergone “an evolution” on the matter.
“At a certain point, I’ve just concluded that — for me personally, it is important for me to go ahead and affirm that — I think same-sex couples should be able to get married,” Obama said, somewhat hesitantly, to ABC’s Robin Roberts. In literally the next breath, Obama endorsed a go-slow approach, saying he didn’t want to “nationalize” the issue.” What you’re seeing is, I think, states working through this issue — in fits and starts, all across the country,” Obama continued. “Different communities are arriving at different conclusions, at different times. . . . And I continue to believe 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.”
But the court did raise the possibility that the issue would be “nationalized” by agreeing to review California’s Proposition 8. That is the 2008 referendum in which voters amended the state constitution to forbid same-sex marriage, which had been approved by the state Supreme Court earlier in the year.
The Obama administration has never taken a position on the challenge to Proposition 8, which federal courts have overturned.
Theodore Olson and David Boies, who have led the high-profile legal challenge to Proposition 8, said in a celebratory phone call with reporters that they would defend a decision by a panel of the U.S. Court of Appeals for the 9th Circuit. It overturned the referendum in a narrow way that restored the right to same-sex marriage in California.
But they also said they would push the court to rule that it is unconstitutional to exclude gay couples from the right to marry, no matter where they live. And in response to a question, they turned up the heat a bit on the Obama administration.
Boies called it “the defining civil rights question of our time,” and Olson added: “Given the stand that the president of the United States and the attorney general of the United States have made with respect to marriage equality, we would certainly hope that they would participate.”
He continued: “I’m quite confident . . . that they would support our position in this case, that the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”
The justices did not ask Solicitor General Donald Verrilli, representing the federal government, to weigh in on the Proposition 8 case, and the administration is under no legal obligation to do so.
But it would not be surprising for Verrilli to be pressed on the broader constitutional questions when he appears in the case the administration did want the court to take — a challenge of the 1996 Defense of Marriage Act (DOMA).
The law withholds federal benefits, such as preferential tax status, health insurance and medical leave, to same-sex couples who are legally married where they live. The Obama administration last year announced that it believed the law was unconstitutional, and courts have agreed.
The unusual situation was noted in the court’s order Friday granting the DOMA case, U.S. v. Windsor. It asked whether it can properly hear the case since the executive branch agrees with the lower court decisions. The defense of DOMA is now being led by the House Republican leadership, through a panel called the Bipartisan Legal Advisory Group.
Likewise in the California case, Hollingsworth v. Perry, the state’s top elected officials have declined to defend the Proposition 8 results. The court asks whether it is proper for it to hear the challenge of the lower court decision from those who advocated the passage of Proposition 8.
It is one of the many intriguing story lines that will play out between now and the time the court hears the cases, likely late March.
Perhaps the most interesting will be among those who favor same-sex marriage but disagree on the wisdom of asking the court to make a broad decision now.
William Eskridge, a Yale law professor, and Hans Johnson, president of Progressive Victory, countered the enthusiasm of Olson and Boies in an article this month posted at Scotusblog.com.
“Most Americans do not care about DOMA, but almost half of the country still cares, many of them as a matter of deep faith and personal identity, about the definition of marriage in their home states,” Eskridge and Johnson wrote.
“Just as a Supreme Court decision upholding DOMA and Proposition 8 would be an affront to the (largely blue) half of our country opposed to antigay discrimination, so a decision effectively sweeping away the marriage restrictions followed in three-quarters of the states would be an affront to the other (mostly red) half of the country.”
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