K.S. Rajan (23 Feb 2013)
"Obama weighs stepping
in on gay marriage case"
WASHINGTON (AP) — Facing heightened expectations from gay rights
supporters, the Obama administration is considering urging the
Supreme Court to overturn California's ban on gay marriage — a
move that could have a far-reaching impact on same-sex couples
across the country.
The administration has one week to file a friend-of-the-court
brief with the justices outlining its opinion on the California
ban, known as Proposition 8. While an administration brief alone
is unlikely to sway the high court, the government's opinion
does carry weight with the justices.
Opponents of the Proposition 8 ban believe the president
signaled his intention to file a brief when he declared in last
month's inaugural address that gays and lesbians must be
"treated like anyone else under the law." An administration
official said Obama — a former constitutional law professor —
was not foreshadowing any legal action in his remarks and was
simply restating his personal belief in the right of gays and
lesbians to marry, though the official said the administration
was considering filing a brief.
The Proposition 8 ballot initiative was approved by California
voters in 2008 in response to a state Supreme Court decision
that had allowed gay marriage. Twenty-nine other states have
constitutional amendments banning gay marriage, while nine
states and Washington, D.C., recognize same-sex marriage.
Solicitor General Donald Verrilli is consulting with the White
House on the matter, according to a senior administration
official, who spoke only on condition of anonymity because the
official was not authorized to address the private deliberations
publicly.
While the Justice Department would make the filing, the
president is almost certain to make the ultimate decision on
whether to do so.
"I have to make sure that I'm not interjecting myself too much
into this process, particularly when we're not a party to the
case," Obama said Wednesday in an interview with San Francisco's
KGO-TV.
He said his personal view was that gay couples should have the
same rights as straight couples and said his administration
would do whatever it could to promote that principle.
Obama has a complicated history on gay marriage. As a
presidential candidate in 2008, he opposed the California ban
but didn't endorse gay marriage. As he ran for re-election last
year, he announced his personal support for same-sex marriage
but said marriage was an issue that should be decided by the
states, not the federal government.
To some, Obama's broad call for gay rights during his Jan. 21
inaugural address was a sign that he now sees a federal role in
defining marriage.
"Our journey is not complete until our gay brothers and sisters
are treated like anyone else under the law," Obama said during
his remarks on the west front of the Capitol. "For if we are
truly created equal, than surely the love we commit to one
another must be equal as well."
Seeking to capitalize on growing public support for gay
marriage, advocates are calling on the administration to file a
broad brief not only asking the court to declare California's
ban unconstitutional but also urging the justices to make all
state bans illegal.
"If they do make that argument and the court accepts it, the
ramifications could be very sweeping," said Richard Socarides,
an attorney and advocate.
The administration could also file a narrower brief that would
ask the court to issue a decision applying only to California.
Or it could decide not to weigh in on the case at all.
The Supreme Court, which will take up the case on March 26, has
several options for its eventual ruling. Among them:
— Uphold the state ban on gay marriage and say citizens of a
state have the right to make that call.
— Endorse an appeals court ruling that would make same-sex
marriage legal in California but apply only to that state.
— Issue a broader ruling that would apply to California and
seven other states: Delaware, Hawaii, Illinois, Nevada, New
Jersey, Oregon and Rhode Island. In those states, gay couples
may join in civil unions that have all the benefits of marriage
but may not be married.
— Rule that the Constitution forbids states from banning
same-sex unions.
For weeks, supporters and opponents of Proposition 8 have been
lobbying the administration to side with them.
Last month, Theodore Olson and David Boies, lawyers arguing for
gay marriage, met with Verrilli and other government lawyers to
urge the administration to file a brief in the case. A few days
later, Charles Cooper, the lawyer defending Proposition 8, met
with the solicitor general to ask the government to stay out of
the case. Those kinds of meetings are typical in a high court
case when the government is not a party and is not asked by the
court to make its views known.
Boies and Chad Griffin, president of the advocacy group Human
Rights Campaign, also had a meeting at the White House on the
case.
Ahead of next week's deadline, nearly two dozen states have
filed briefs with the court asking the justices to uphold the
California measure.
Public opinion has shifted in support of gay marriage in recent
years. In May 2008, Gallup found that 56 percent of Americans
felt same-sex marriages should not be recognized by the law as
valid. By November 2012, 53 percent felt they should be legally
recognized.
One day after the court hears the California case, the justices
will hear arguments on another gay marriage case, this one
involving provisions of the federal Defense of Marriage Act. The
act defines marriage as between a man and a woman for the
purpose of deciding who can receive a range of federal benefits.
The Obama administration abandoned its defense of the law in
2011 but continues to enforce it.
___
Associated Press writer Mark Sherman and News Survey Specialist
Dennis Junius contributed to this report.