After President Obama became the first president ever to speak out for gay equality in an inaugural address, it wasn’t too surprising that his administration filed a brief calling on the Supreme Court to strike down the Defense of Marriage Act (DOMA). The Department of Justice had for years refused to defend the law, forcing austere Republicans to spend millions arguing for federal discrimination against same-sex couples.
The president’s decision to file a friend-of-the-court brief in the case challenging California’s Proposition 8, which amended California’s Constitution to prohibit same-sex marriage after the state’s Supreme Court ruled gay couples could marry, is a much bigger deal. It’s a bigger deal than even becoming the first president to say he personally believes that marriage is a right all Americans should enjoy, as he did in a press conference Friday.
The key to the brief filed by President Obama’s Solicitor General, according to The Washington Post‘s Greg Sargent, is the idea of “heightened scrutiny.”
“That means the court should hold their rationale for discriminating to an extremely high standard, and strike them down if they fail to have a credible justification,” Sargent writes.
If the Court accepts that reading, as a lower court has, the government argues that Prop. 8 does not meet that “heightened scrutiny.” If this is true, the seven other states that allow same-sex couples civil unions would likely have to allow same-sex marriage.
Critics call this the “eight-state solution” and fear it would prevent other states from offering civil unions for fear of it becoming marriage.
But some who support national same-sex marriage — including conservative Ted Olson, who was George W. Bush’s Solicitor General and is now arguing against marriage discrimination — say the Obama administration’s stand on the Prop. 8 case is exactly right.
“If the Court agrees with the United States that ‘heightened scrutiny’ applies, that is a clear path to marriage equality across the United States, because marriage bans in other states cannot satisfy that standard, either,” Olson wrote in an email to Sargent.
While this would not trigger a victory similar to that in the case of Loving v. Virginia, where the Court struck down all laws banning interracial marriage, a victory that accepts the Obama opinion could “give gay advocates a powerful weapon to challenge other state laws around the country banning gay marriage, and they’d likely be toppled as unconstitutional — one by one,” according to Sargent.
Forcing conservatives to have to defend discrimination against same-sex couples quickly reveals how empty the arguments against gay marriage are. Since the First Amendment bans the strained Biblical justifications social conservatives like to offer, they’re quickly forced to make arguments about the importance of being able to reproduce, which even conservative judges are likely to find laughable.
In a press conference at the White House on Friday, President Obama responded to a question about why he didn’t call for marriage as a right for all Americans by saying, “And what we’ve said is, 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, it should be struck down. That’s the core principle, as applied to this case.”
He added, “So the basic principle, though, is let’s treat everybody fairly. Let’s treat everybody equally.”
It seems the nation is a poised to evolve on same-sex marriage as quickly as our president has.