May 21, 2012
By Scottie Thomaston
When the president made his announcement in support of marriage equality in his interview with Robin Roberts, he was asked if his administration would get involved in marriage equality cases that are working their way through the courts right now, and could reach the Supreme Court within a year or two. He said that he views marriage equality as a state issue and that his administration believes the federal Defense of Marriage Act is unconstitutional. He said he thinks “it is a mistake to– try to make what has traditionally been a state issue into a national issue” especially considering that Mitt Romney’s position on the rights of same sex couples is that marriage equality should be outlawed in a constitutional amendment. Romney also opposes civil unions for gay and lesbian couples.
The Justice Department has said they have taken no position on Perry v. Brown, the Proposition 8 case:
The White House referred an inquiry on the Prop. 8 case to the Justice Department, which said Monday that it has not taken part in that case “or taken a position on the claims presented.”
That’s true only in part.
In arguing that the 1996 federal law known as DOMA unconstitutionally denies benefits to same-sex spouses, the Justice Department has made one claim that would apply equally to a state marriage law: that DOMA discriminates against a historically persecuted minority that lacks the power to defend itself in the political process.
Similar reasoning appeared in the August 2010 ruling by then-Chief U.S. District Judge Vaughn Walker, who said Prop. 8 was part of a “long history of discrimination” against gays and lesbians and was based, ultimately and unconstitutionally, on “moral disapproval.”
And Theodore Boutrous, part of the team fighting against Proposition 8 in court, argues that the equal protection arguments are similar enough, and the case is important enough for the administration to step in, either on its own or if asked to give the administration’s views:
“The president made a brave and important statement about his personal views. … He wasn’t getting into legal strategy,” said Theodore Boutrous, a lawyer for same-sex couples and a gay-rights group that sued to overturn the California measure.
But when the time comes, he said, “they will see that the Prop. 8 case, like the DOMA cases, presents extremely important equal protection and due process issues.” When the court, as it often does, asks the federal government to take a position, Boutrous said, “I think they will weigh in on our side.”
The case would not be headed to the Supreme Court until sometime in President Obama’s second term. Right now, the Ninth Circuit is still weighing whether it will rehear the case en banc or not. If it decides to rehear the case, that will prolong a final review by the Supreme Court. But even if it denies rehearing and the case can proceed to the Supreme Court, it would be next term or later before it’s heard and a decision is rendered.