The Obama administration on Thursday urged the Supreme Court to rule in the case of California’s Proposition 8 that same-sex marriage should be required in eight more states, beyond the nine that already permit it, although it stopped short of explicitly calling for the Justices to extend the right to the entire nation. [Editor’s note: Directly below this post is a shorter discussion of today’s filing in Plain English.]

Here was the government’s key argument why the Golden State’s ban on same-sex marriage fails the constitutional test the administration suggested: “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.” Solicitor General Donald B. Verrilli, Jr., filed the brief shortly after 6:30 p.m. Thursday. California is one of the eight states that would be covered by that argument.

Much of the logic of the government’s brief — its first entry into the controversy over the 2008 ballot measure — could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.

Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

“The Court can resolve this case,” the new brief said, “by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.” That final phrase was the brief’s strongest indication that the administration is not yet ready to take a firm position on whether the “fundamental right to marry” that the Court has recognized repeatedly is a right that should be open also to same-sex couples.

The eight states that apparently would be covered by the argument the Solicitor General has now made are California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

Beyond those eight, nine other states already recognize full marriage rights for same-sex couples. Three have done so as a result of state court rulings (Connecticut, Iowa, and Massachusetts). Five have done so by state legislatures’ passage of equality laws (Maryland, New Hampshire, New York, Vermont, and Washington), and one by voter-approved ballot measures (Maine). The legislatively approved equality laws in Maryland and Washington were ratified last November by voters in statewide balloting. Washington, D.C., also allows same-sex marriages.

The Solicitor General’s brief ticked off all of the arguments put forth by the defenders of Proposition 8, and contended that none of them can withstand scrutiny in the face of the simple fact that California recognizes same-sex couples living in committed relationships as the same as opposite-sex couples — except for civil marriage itself.

By that approach, the document said, “Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing — [the defenders’] central claimed justification for the initiative — but instead on impermissible prejudice. . . . Prejudice may not, however, be the basis for differential treatment under the law.”

While this argument, if accepted by the Court, would be enough to scuttle Proposition 8, it might not go far enough to nullify bans on same-sex marriage in states that do not extend marriage-like benefits to same-sex couples. But that gap might be filled, at some time in the future, if the Court were to endorse the government’s basic contention that laws that treat gays and lesbians less favorably should be judged by a more rigorous constitutional standard.

An all-out constitutional attack on California’s Proposition 8 — an ambitious attempt to create full marriage equality nationwide — has been under way in the federal courts since May 2009, when two same-sex couples denied marriage licenses in California filed their lawsuit in U.S. District Court in San Francisco. The two couples are Kristin Perry and Sandra Stier of Berkeley and Jeffrey Zarrillo and Paul Katami of Burbank.

As the case unfolded, the federal government was never involved. Once it reached the Supreme Court at the end of last July, the question whether the Obama administration would take a position promptly arose. The brief filed Thursday evening provided the government’s answer.

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.

Applying that test to California and the other states that now withhold marriage itself from only one group of couples when all couples who share a committed relationship are entitled to the other benefits of marriage, the administration argued that this amounts to a form of discrimination based on sexual orientation and thus cannot stand.

In the other same-sex marriage case that is now moving forward at the Court, involving the constitutionality of the federal Defense of Marriage Act of 1996, the administration is using that same constitutional test in urging the Court to nullify a key section of DOMA — Section 3.

That section and Proposition 8 are quite different in scope: DOMA Section 3 bars federal marital benefits to same-sex couples who are already married under their own state’s law, while Proposition 8 flatly bans same-sex marriage throughout the state. In the court cases around the country challenging DOMA, the administration has not had to address the scope of the right to marry, because the couples challenging that provision already are legally married. But that right is at the core of the Proposition 8 case and, if the government was to enter that case at all, it had to deal with that directly.

Some legal observers have noted that, if the more rigorous constitutional test the government now proposes is applied even to states that now forbid same-sex marriage, they would have difficulty passing that test. Indeed, a federal judge who dissented in the DOMA case that the Court is reviewing made just that point.

The administration brief did not take an explicit position on how its standard might apply to states that do not now provide civil unions or other broad marriage-like rights as the eight non-marriage states do. But the logic of its constitutional test might, in fact, jeopardize same-sex marriage bans as a general proposition.

The challenge to Proposition 8 has led to two lower court rulings — one by a federal district judge in San Francisco, in a sweeping decision declaring that marriage is a government benefit that constitutionally must be open to all couples, gay and straight, and one by the Ninth Circuit Court, in a significantly narrower decision holding simply that a state cannot once grant a right to marry, as California did for a brief period, and then take it away.

The administration brief argued that the Ninth Circuit ruling should be upheld, but on the different ground that Proposition 8 fails because it withholds only the civil right of marriage from couples who otherwise share all of the benefits of marriage.

One curious facet of the new government brief is that it took no position on the question of whether the Court has the authority to decide the validity of Proposition 8. When the Court agreed to hear that case, it told the lawyers also to be prepared to argue whether or not the backers of that measure had a legal right, under Article III, to file their appeal.

If the sponsors did not have that right, the Court would have no jurisdiction to rule on their appeal. The administration appeared to have chosen to leave that issue to be debated by others filing briefs in that case. The two same-sex couples who are continuing to pursue their challenge to Proposition 8 do make that argument as part of their brief, already filed, and several other briefs being filed by groups not directly involved in the case will be advancing that argument, too.

Almost inevitably after filing such a significant brief, the United States will ask permission to participate in the oral argument on March 26 over the fate of Proposition 8.

The Solicitor General’s brief justified the federal government’s first move into the Proposition 8 case by arguing that “the denial of the right to marry to same-sex marriage,” and the constitutionality of that denial raises in both that case and in the DOMA lawsuit the core question of what constitutional standard should govern laws that draw such distinctions.

Moreover, the brief said, some of the arguments that backers of Proposition 8 have advanced also have been made in support of DOMA.

Recommended Citation: Lyle Denniston, U.S. endorses limited gay marriage right, SCOTUSblog (Feb. 28, 2013, 6:27 PM), https://www.scotusblog.com/2013/02/u-s-endorses-limited-gay-marriage-right/