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Obama on Prop 8: How sweeping is administration support for gay marriage?

Even if the Supreme Court agrees with President Obama's brief arguing that California's Prop. 8 is unconstitutional, that doesn't mean there will be a nationwide right for gays to marry.

By Peter Grier, Staff Writer
Washington

President Obama on Friday said that in recent years, the whole nation has moved toward the position that gay couples should marry 鈥 a change in thinking that mirrors his own.

That鈥檚 a 鈥減ositive thing,鈥 he said at a short news conference, and it鈥檚 a big reason the administration on Thursday filed a friend-of-the-court brief with the US Supreme Court arguing that California鈥檚 Proposition 8, which bans gay marriage, is unconstitutional.

鈥淲hen the Supreme Court essentially called the question by taking this case about California鈥檚 law, I didn鈥檛 feel like that was something that this administration could avoid,鈥 Mr. Obama said. 鈥淚 felt it was important for us to articulate what I believe and what this administration stands for.鈥

But do Obama and his administration believe the court should establish a broad national right for gays to wed? That鈥檚 a question with a complex answer not entirely reflected in the president鈥檚 words.

Strictly speaking, the US did not have to get involved in Hollingsworth v. Perry (12-144), the Supreme Court case on Prop. 8. That鈥檚 because the case centers on the constitutionality of a state statute: in this case, a proposition passed by California voters, which amended the state constitution to limit 鈥渕arriage鈥 to a union between a man and a woman.

The administration鈥檚 brief argues (unsurprisingly) that Prop. 8 is indeed unconstitutional. But it does not hold that all state prohibitions on gay marriage are thus also unconstitutional.

However, the brief鈥檚 reasoning still might ultimately lead the Supreme Court, if it agrees, to eventually establish gay marriage as a national right.

Got that? No? OK, we鈥檒l back up and try a fuller explanation.

The reason Prop. 8 is unconstitutional is because California already allows gays full rights and benefits via civil unions, according to the administration brief. Thus there is no reason to deny them the final step of marriage, except simple prejudice, the brief argues. If California thought there was some substantive reason to prevent gay marriage 鈥 say, that it would be bad for children 鈥 then the state would block civil unions as well.

And if gays are being denied marriage due to prejudice, then Prop. 8 runs afoul of the Constitution鈥檚 promise that all Americans will be treated equally.

鈥淭he government seeks to vindicate the defining constitutional ideal of equal treatment under the law,鈥 said Attorney General Eric Holder in a statement issued after the brief was filed.

But as the US brief points out, if the Supreme Court agrees and strikes down the California statute on these grounds, that does not mean the justices will have established a nationwide right for gays to marry. What it does mean is that the eight states that allow full civil unions but prohibit gay marriage will have to take the last step and lift their own marriage bans.

(If you鈥檙e interested, those eight are California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.)

鈥淭he Court can resolve this case 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,鈥 says the US brief.

That鈥檚 not the full extent of the administration鈥檚 position. The brief also argues that in the longer term, the Supreme Court should subject laws that discriminate on the basis of sexual orientation to a type of judicial review known as 鈥渉eightened scrutiny.鈥

This rigorous test is now applied to laws that discriminate on the basis of race, sex, and a few other factors. If the high court agrees and lumps discrimination against gays in with these other categories, same-sex marriage bans around the country could be imperiled.

鈥淏ut that might take a while, by which point the country and the Court might be more ready to do so 鈥 which may well have been the Obama administration鈥檚 goal all along,鈥 writes Amy Howe on SCOTUSblog.

This complicated brief reflects Obama鈥檚 own complicated relationship with the issue. In 2008, he said he opposed California鈥檚 same-sex marriage ban, but did not go further and endorse gay marriage as an institution. In 2012, he said he was personally in favor of same-sex marriage, but that states should have leeway to control the definition of marriage within their own boundaries.

Then in his inaugural address, he seemed to indicate yet more movement.

鈥淥ur journey is not complete until our gay brothers and sisters are treated like anyone else under the law,鈥 Obama said.

Asked on Friday why the US did not file a brief calling for a more sweeping legalization of same-sex marriage, Obama said, 鈥淭hat鈥檚 an argument I鈥檝e made personally," but that Hollingsworth v. Perry deals only with the constitutionality of California law, and thus the US limited its legal reasoning in the case.