WASHINGTON -- The Obama administration has endorsed a constitutional right to marry for gays and lesbians, urging the Supreme Court to strike down California’s voter-passed law barring same-sex marriage as well as laws in at least the seven other states that already provide civil unions.

“Tradition, no matter how long established, cannot by itself justify a discriminatory law,” the administration said in a brief filed with the high court late Thursday. “Prejudice may not be the basis for differential treatment under the law.”


The administration’s argument struck a legal middle ground – giving the justices a way to overturn California’s Proposition 8 without upsetting the laws in all states that currently ban same-sex marriage. Gay-rights advocates have asked the court to strike down all laws nationwide that bar same-sex couples from marrying, but many legal analysts have doubted that a majority of the justices would go that far.

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Rather than argue for a nationwide ruling, the brief filed by U.S. Solicitor General Donald Verrilli Jr. argues that bans on same-sex marriage cannot stand at least in states that already have granted same-sex couples nearly all the rights of marriage. To give those rights while withholding the status of marriage would amount to discrimination based on a person’s sexual orientation, and that cannot be justified under the Constitution, the brief says.

“The designation of marriage,” the brief notes, “conveys a message to society that domestic partnerships or civil unions cannot match.”


That legal argument, if the justices adopt it, would apply not only to California, but to seven other states that allow civil unions but not gay marriage. Those are Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island, the brief says.

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In addition, the government argued, laws that discriminate based on sexual orientation should be treated skeptically by the courts, much as laws that discriminate by gender. That standard, if adopted, ultimately could invalidate other states’ laws against same-sex marriage.

The administration was not required to get involved in the California case, but gay rights groups lobbied it heavily to do so. The groups also have orchestrated a series of briefs on their side by business leaders, prominent Republicans and others. Although the government’s brief did not go as far as gay-rights advocates have done, it won immediate praise from those organizations.


Unlike most other outside groups, the views of the solicitor general’s office often have particular weight with the justices, although the court could decide the case on several other grounds.

The decision to file a brief comes after several weeks of hesitation and internal debate. It marks the latest step in President Obama’s self-described “evolution” on the issue of same-sex marriage. When he initially ran for president in 2008, he did not support marriage rights for gays and lesbians, although he also opposed Prop. 8, which California voters approved that year. In recent weeks, Obama increasingly has referred to same-sex marriage as an issue of civil rights.


Other administration officials have taken the same stance. In a television interview to be aired next week, for example, Atty. Gen. Eric Holder said that he saw marriage equality as “really the latest civil-rights issue.”

“It is the question of whether or not American citizens are going to be treated with equal protection of the laws,” Holder said in the interview with ABC News.


White House officials have been at pains to present the decision of whether to weigh in on the Proposition 8 case as one made at the Justice Department.

“The president obviously has expressed an opinion in the past on this issue as a matter of policy, but when it comes to legal and constitutional issues around it, that’s a jurisdiction that resides at the Department of Justice,” White House Press Secretary Jay Carney said.


Privately, however, senior administration officials have made clear that on such a weighty policy issue, they would act based on the president’s wishes.

The case before the court will be the first to directly confront the justices with the question of whether the U.S. Constitution gives gays and lesbians a right to marry.


Judges in several states had upheld gay marriage under their state constitutions, and the California Supreme Court did the same in 2008. But that fall, the state’s voters narrowly approved Prop. 8, which changed the state constitution to limit marriage to the union of a man and a woman.

The case before the high court began shortly afterward when two same-sex couples sued in federal court in San Francisco, arguing that excluding them from marrying violated their rights to liberty and equal treatment.


A federal judge agreed and struck down Prop. 8. The 9th Circuit Court of Appeals upheld that decision, but did so on the narrower basis that the voters could not take away marriage rights from gays and lesbians once those rights had been granted.

In December, the Supreme Court voted to hear an appeal from the defenders of Prop. 8, who say the courts should defer to the wishes of the state’s voters.


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California’s top officials, including Attorney General Kamala Harris, have joined the case on the side of the gay plaintiffs. In a brief filed earlier this week, Harris noted that more than 50,000 children in California are being raised by same-sex couples.


“California’s interests in protecting all of its children are best served by allowing these same-sex couples to enjoy the same benefits of marriage as opposite-sex couples,” Harris said.

The case will be argued before the court on March 26.


[Updated, 4:50 p.m. Feb. 28: This post has been updated to add details.]


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