Obama: I would rule against all gay marriage bans

Richard Wolf, USA TODAY | USATODAY

WASHINGTON -- President Obama said Friday that he sees no basis for any state to ban same-sex marriage, even though his administration's legal brief to the Supreme Court makes a more limited argument.

"If I were on the court, that would probably be the view that I'd put forward," Obama said in response to a question at an impromptu news conference.

Obama said the issue before the court later this month on California's Proposition 8 ban on gay marriage is whether the state had a good reason to impose it. His own answer, he said, is that it "doesn't provide any rationale for discriminating against same-sex couples other than just the notion, 'Well, they're same-sex couples.'"

The administration's brief to the high court, filed late Thursday, specifically contends that states such as California that allow domestic partnerships or civil unions for gay couples are denying them equal treatment when it comes to marriage. That includes Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.

A total of 38 states prohibit same-sex marriage, either by law or voter referendum, and the administration's brief does not label them all unconstitutional. But it does say the high court should apply "heightened scrutiny" to California's ban -- a standard under which legal experts say no state ban could survive.

"What we've said is that same-sex couples are a group, a class, that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it's doing it, and if the state doesn't have a good reason, then it should be struck down," Obama said.

The president made clear that the decision to file the brief -- which the administration did not have to do, since it is not a party to the California case -- was his decision.

"When the Supreme Court essentially called the question by taking this case about California's law, I didn't feel like that was something that this administration could avoid," he said. "I felt it was important for us to articulate what I believe and what this administration stands for.

"If the Supreme Court asks me or my attorney general or solicitor general, 'Do we think that meets constitutional muster?,' I felt it was important for us to answer that question honestly. And the answer is no."

The court has reserved two days this month to consider the California ban and the Defense of Marriage Act, which denies federal benefits to legally married same-sex couples. Both have been declared unconstitutional by lower courts, decisions which are being challenged by gay-marriage opponents.

Proposition 8 was approved by California voters in November 2008 to block a state Supreme Court decision legalizing same-sex marriage. Ever since, gay couples have been blocked from marrying in the nation's most populous state. A final ruling overturning the ban would open the floodgates to thousands of new same-sex marriages there.

What effect a court ruling striking down Proposition 8 would have on other states is not clear. The justices could rule narrowly, as a federal appeals court did, holding only that voters cannot take away a right previously enjoyed, however briefly, by Californians. But a more sweeping decision declaring marriage rights for gays and lesbians could endanger all state bans.

The Defense of Marriage Act (DOMA) was passed by Congress and signed by President Clinton in 1996 as a response to a Hawaii Supreme Court ruling that questioned the denial of a marriage license to a same-sex couple. The federal law has blocked legally married couples from receiving federal benefits in Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington and the District of Columbia, where gay marriage is legal.

The administration is leading the effort to overturn DOMA in the case of Edith Windsor, an 83-year-old New York widow who was forced to pay hundreds of thousands of dollars in estate taxes when her lesbian spouse died in 2009. Had she been married to a man, she would have faced no inheritance tax.

The Proposition 8 case will be argued on March 26 and the DOMA case the following day. Decisions are expected in June.