In the culmination of a dramatic turnaround on the question of gay marriage that reflects the larger sea change among the American public — as well as President Obama’s much-cited personal “evolution” — the Obama administration is now taking the maximal legal position that gay and straight couples have an equal constitutional right to marry.
In an amicus brief filed with the Supreme Court, Obama’s Justice Department argued that California’s Proposition 8 — which outlaws same sex marriage in the state — should be struck down because it violates the Constitution’s guarantee of equal protection under the law. The brief comes one month before the court is set to hear arguments on two major gay marriage cases. One involves the Defense of Marriage Act, which the federal government will take the lead in pushing to overturn, and the second involves Prop 8, where the federal government is not a party to the case but where it has now made its position clear.
“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 administration’s brief reads. “Prejudice may not, however, be the basis for differential treatment under the law.”
Evan Wolfson, who leads the pro-marriage-equality group Freedom To Marry, told TPM that the brief makes as expansive a legal case as plausible for putting gay and straight couples on equal footing. “The arguments laid out powerfully and clearly refute all the purported justifications for withholding the freedom to marry for gay couples,” Wolfson said.
As legal reporter Lyle Denniston of SCOTUSblog explains, “The brief recommended that the Court, for the first time, apply a tough constitutional standard to Proposition 8 — the standard that goes by the technical name ‘heightened scrutiny.’ It means that such a law must serve an important government interest, and be effective in doing so.” Denniston observed that states which currently ban same sex marriage “would have difficulty passing that test.”
The brief completes a dramatic turnaround by the president.
In 2008, he campaigned on a platform of opposition to gay marriage. Early in his presidency, he directed his administration to defend the Defense of Marriage Act, which prohibits federal recognition of legal same sex unions. His Justice Department even invoked cases that involved people marrying first cousins and children, infuriating gay rights advocates.
“I believe marriage is between a man and a woman,” Obama told MTV on Nov. 2, 2008. “I am not in favor of gay marriage.”
The tide turned on Feb. 23, 2011, when the Obama administration announced that it would no longer defend DOMA, arguing that the law violated the Constitution’s guarantee of equal protection. The following year, in the heat of a presidential campaign, he came out for legalizing same sex marriage. Last week’s brief takes it a step further by pushing the highest court in the land to enshrine that view as a constitutional principle.
“The basic principle that America is founded on, the idea that we are all created equally, applies to everybody, regardless of sexual orientation as well as race or gender,” Obama told reporters at a press conference Friday, saying he would rule against all gay marriage bans if he were on the Supreme Court. “Let’s treat everybody fairly. Let’s treat everybody equally.”
The “evolution,” as the president calls it, mirrors a sea change in national public opinion.
“I think that the same evolution that I have gone through is an evolution that the country as a whole has gone through,” Obama said. “I think it is a profoundly positive thing.”
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.