The Ticket

Obama administration files brief supporting gay marriage in California

Liz Goodwin, Yahoo News
The Ticket

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Kat McGuckin holds a gay marriage pride flag in front of the Supreme Court in November 2012. (Chip Somodevilla …

The Obama administration has waded into the legal battle over California's gay marriage ban, filing a brief with the Supreme Court Thursday evening that argues the state's voters did not have the right to decide gay couples cannot wed.

In the brief, the Justice Department--which is not involved in the case--argues that the gay marriage ban violated same-sex couples' constitutional guarantee to equal protection under the law and is the result of prejudice.

"Prejudice may not...be the basis for differential treatment under the law," the brief said.

But the Obama administration stopped short of calling for a countrywide guarantee of equal access to marriage for gay people in the brief, keeping its arguments focused on California.

"Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination," Attorney General Eric Holder said in a statement. "The issues before the Supreme Court in this case ... are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

The California ballot initiative, called Proposition 8, was passed in 2008 with 52 percent of the vote and reversed an earlier state Supreme Court decision allowing gay marriage in the state. Thousands of gay couples in the state had already tied the knot when the ban passed.

In its brief, the Obama administration also argued that laws targeting gays and lesbians specifically should face "heightened scrutiny" from the courts, since gay people have faced a history of discrimination, share a trait they cannot change, and lack political power.

President Barack Obama announced last year that he believes gay couples should be allowed to get married but did not say they have a constitutional right to wed.

At his inaugural address in January, Obama seemed to suggest he did believe the government has a role in ensuring gay people are allowed to marry. "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well," he said then.

Two federal courts have already decided that Proposition 8 is unconstitutional, saying it discriminates against a group of people without proving there is a legitimate government interest in doing so. The higher of the two courts, the 9th U.S. Circuit Court of Appeals, decided the case in a way that ensures it will affect only California and will not invalidate gay marriage bans in the dozens of other states that have adopted them.

But it's possible the Supreme Court could take a broader view of the case when it hears oral arguments in late March. Justices could decide whether or not there is a fundamental right to marriage that the government cannot deny people based on sexual orientation. If they uphold Proposition 8 under these terms and allow the ban on same sex nuptials to stand, the ruling could cement state gay marriage bans for decades.

More than 100 Republicans, including former Utah Gov. Jon Huntsman, signed a brief filed earlier in the week encouraging the court to strike down Proposition 8. One of the lead attorneys arguing against the ban is Ted Olson, the former solicitor general under George W. Bush.

The president of the anti-gay marriage group Family Research Council, Tony Perkins, criticized Obama for what he termed "hypocrisy" on gay marriage. "This is a sharp reversal from the position President Obama articulated just last May, when he declared that this is an issue that is gonna be worked out at the local level," Perkins said.

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