February 15, 2013 – NewYorker.com
OBAMA’S NEXT CHOICE ON GAY MARRIAGE
Posted by Richard Socarides
Ever since President Obama’s sweeping embrace of gay equality in his recent Inaugural Address, the question for legal observers has been whether his Justice Department will follow up with Supreme Court arguments to match. The Court is scheduled to hear arguments in two potentially seminal gay-marriage cases next month, and the Administration is facing an important strategic legal decision. In its Supreme Court arguments, should the government align itself with the most aggressive gay-rights advocates or, alternatively, position itself as a more neutral or disinterested gay-marriage observer? It doesn’t have long to decide: briefs are due on February 28th.
The question, as Jeffrey Toobin wrote last month, is whether he and his Administration “believe that gay people have the constitutional right to marry, whether or not state legislators grant it to them”—whether the federal government should just abide by state laws legalizing same-sex marriage, by overturning the Defense of Marriage Act, or, more powerfully, by saying that every American has that right. The president’s speech last month raised the stakes, and it now appears likely that Obama will choose the bolder course and submit an aggressive brief in favor of full gay equality. The reason is as much political as it is legal: the importance traditionally placed on having the legal arguments made by the Justice Department line up with the President’s broad policy formulations.
If Obama’s Justice Department acts boldly, it could have sweeping legal and political implications for years to come. If it doesn’t, the Court will wonder why he is reluctant to back up his policy ideas with legal arguments to match. It will likely send a message that the President questions whether the country is ready for gay marriage, and send a signal that a more cautious approach by the Court is acceptable to the White House.
In his more recent State of the Union address, Obama’s most overt reference to the legal cases came when he said, “We will ensure equal treatment for all service members, and equal benefits for their families—gay and straight.” At a minimum, this would require a repeal of DOMA, which has held the military back; but in a full sense it would require more.
In the run-up to the last election, Obama stated on several occasions that while he personally supported same-sex marriage, as he told MTV News, “Ultimately, I believe that if we have that conversation at the state level, the evolution that’s taking place in this country will get us to a place where we are going to be recognizing everybody fairly.”
But that could take a long time. Voters or state legislatures in thirty states have enacted state-constitution gay-marriage bans. Although the trend is turning—nine states allow gay marriage now and, as we saw this week in Illinois, where the State Senate passed a gay-marriage bill, others are moving in that direction quickly—to take a position that those thirty states’ bans on gay marriage are unconstitutional would put the President at odds with a lot of voters. And yet, if he believes it to be the case—and he left little doubt after his Inaugural Address that he does—is he obligated, legally or otherwise, to express that view when the Court considers these issues?
One of the cases up for review is not really a gay-marriage case at all. The question before the judges in Edith Windsor vs. United States is whether the government can deny federal recognition to otherwise valid, state-sanctioned same-sex marriages. Because a federal law (namely, DOMA) is being challenged, the federal government is a party to the case and has had to take a position. The Department of Justice first defended the law, then reversed course and now supports Windsor—a sympathetic and charismatic widow who had to pay hundreds of thousands of dollars in taxes because the federal government, unlike the State of New York, did not recognize her marriage. Republicans in the House of Representatives have now stepped in to organize a defense of the law.
The important issue here, in technical terms, will be what standard of legal review is articulated, and whether DOMA passes it. The government has now taken the position in Windsor that sexual-orientation classifications, when challenged on constitutional grounds, should be examined very carefully by courts and set aside unless a strong argument can be made in their defense. This is what is sometimes called a “heightened scrutiny” test, and its application most often determines the outcome.
In the other case up for Supreme Court review, California residents are challenging the constitutionality of a state constitutional amendment, known as Proposition 8, which limits marriage to only opposite-sex couples. The State of California is the defendant because one of its laws is being challenged. The federal government is not even a party and up until now has not offered its view. It is not required to, but Obama will have the option, on or before February 28th, to file a friend-of-the-court brief asserting the government’s position. If he does not, Obama will have passed up the opportunity to assert his view in one of the most consequential cases of his Presidency.
The Justice Department has three different arguments it can make in favor of affirming the lower courts’ rulings overturning Prop 8, and it can advance all three, as will the plaintiffs in the case.
One argument is narrowly procedural. It involves the legal doctrine known as “standing,” which essentially requires the entity bringing the appeal to have a sufficient and legally cognizable interest in the outcome. Because the State of California decided not to appeal the lower court’s ruling declaring Prop 8 unconstitutional, the original proponents of the ballot initiative have been pursuing it. Whether or not they have standing in federal court is the issue. If the Supreme Court accepts the argument that they don’t, the lower-court decision would stand and, most legal commentators believe, same-sex marriage would return to California, although perhaps not immediately, and definitely not to any other state.
A second line of argument would result in a substantive ruling—but one with limited scope. It is that the Supreme Court should merely affirm the limited reasoning of the intermediate appellate court’s ruling in the case, which held not that there was a constitutionally guaranteed right to same-sex marriage but that the State of California acted impermissibly in withdrawing that right by way of a state constitutional amendment after it had previously granted it. This argument also means that same-sex marriage returns only to California.
The third argument is sweeping, in tune with the President’s Inaugural Address, and, if accepted by the Court, would lead to the eventual overturning of all state-level anti-gay-marriage laws. It would involve the government arguing, as in Windsor, that the heightened-scrutiny test should be applied to Proposition 8, the logical extension of which is a rejection of Prop 8’s marriage restriction, as its only justification is based on the weak rationale of custom or, worse, prejudice.
That argument, I believe, is one the Justice Department will boldly make to the U.S. Supreme Court in the Proposition 8 case. It is most in tune with the President’s view, articulated in his Inaugural Address, that “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.” And if accepted by five or more Justices, it will lead inexorably to the end of all anti-gay-marriage laws across the country within the few short years it will take for individuals in those states to challenge them specifically based on this new precedent. Or, better yet, for state legislatures (or actual voters) to undo them.
Richard Socarides is an attorney, political strategist, writer, and long-time gay-rights advocate. He served as White House Special Assistant and Senior Advisor during the Clinton Administration.
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