Brian Baer /

Luis Guerra and Walter Recinos, who ware not married, of San Francisco stand in a cutout of a married couple in 2009.

Obama urges high court to reject California's gay marriage ban

Published: Friday, Mar. 1, 2013 - 12:00 am | Page 1A
Last Modified: Sunday, Mar. 3, 2013 - 2:49 pm

WASHINGTON – The Obama administration declared Thursday that gay marriage can be a right that deserves constitutional protection, supercharging a Supreme Court battle that started with California voters and moved the president to change his mind.

Shedding its earlier caution, the administration forcefully asserted in a key legal brief that the Constitution's equal protection guarantees extend to same-sex couples seeking a California marriage license. The declaration was both voluntary, because the administration wasn't required to take a position on the state's Proposition 8, and emphatic.

"Proposition 8, by depriving same-sex couples of the right to marry, denies them the dignity, respect and stature accorded similarly situated opposite-sex couples under state law," Solicitor General Donald Verrilli Jr. wrote.

The 33-page brief signed by Verrilli thrusts the administration into the potentially landmark gay marriage case to be heard by the court on March 26. It challenges the 37 states that expressly prohibit same-sex marriage through either a statute or a provision in the state's constitution.

Subtly, though, the administration indicates that the Supreme Court can focus on the "particular circumstances" found in California and seven other states that, likewise, grant domestic partnership rights, but not full marriage benefits.

The designation of marriage, Verrilli noted, "confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match."

More broadly, the administration's argument is that any laws based on sexual orientation require "heightened scrutiny" from courts.

And politically, the brief underscores how President Barack Obama's views have been, as he put it last year, "evolving."

Obama declared last May that he had come to support gay marriage after earlier opposing it. Until Thursday, though, his administration had not specified how far that support would go.

The shift in Obama's thinking tracks, to some extent, a similar public trend. Pew Research Center surveys found opposition to gay marriage fell from 60 percent in 2004 to 43 percent last year.

In a survey of California voters taken by the Field Poll last month, approval of gay marriage had grown beyond 60 percent, with significant increases in support in nearly every age, geographic, political and ethnic group.

California in 2008 joined the roster of states that banned gay marriage when voters, by a 52-48 percent margin, approved the ballot measure amending the state's constitution to say that "only a marriage between a man and a woman is valid or recognized." The proposition trumped an earlier state Supreme Court ruling that concluded same-sex couples had a constitutional right to marry.

"Proposition 8's withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing, (the) central claimed justification for the initiative, but instead on impermissible prejudice," Verrilli wrote.

Verrilli further cited a "significant history of discrimination" against gays and lesbians, as well as the observation that gays and lesbians are a "minority group with limited power to protect themselves from adverse outcomes in the political process."

Family Research Council President Tony Perkins denounced the administration's move as a "brazen" flip-flop caused by pressure from "supporters of marriage redefinition." Perkins' conservative group and dozens of others have filed their own briefs supporting Proposition 8.

The high court's March 26 oral argument in the Proposition 8 case, called Hollingsworth v. Perry, is one of two cases relating to gay marriage to be heard by the court this month. The other, challenging the Defense of Marriage Act's prohibition on extending federal benefits to same-sex married couples, will be heard March 27.

If they want, justices could sidestep the big issues and decide either case along narrow grounds. They could even conclude, in either case, that the parties involved lack the legal standing to sue.

The Obama administration, too, had a choice in how to handle the politically sensitive Proposition 8 case. Proposition 8 involved state law, and administration officials could have sat out the state fight altogether.

On the merits, the administration could have chosen to take a less aggressive stance, similar to the 9th U.S. Circuit Court of Appeals.

The 9th Circuit upheld the San Francisco-based trial judge who struck down the state ballot measure, but in a way that applied the ruling strictly to California. Rather than finding a broad constitutional right to same-sex marriage, the appellate panel concluded simply that California could not retract a right once it had been extended.

The Obama administration opted for a more aggressive approach, while not quite embracing an argument that would apply to all 50 states.

The administration spelled out its views in an amicus brief, filed on the last day such friend-of-the-court documents could be lodged in opposition to Proposition 8. There have been many others.

Nineteen states, including Alaska, Idaho, South Carolina, Texas and Kansas, joined in one brief urging the court to uphold a state's authority to write its own marriage laws.

Another brief, filed by Parents and Friends of Gays and Ex-Gays, recounted the experiences of people who said they "made the personal decision to leave homosexuality."

"The definition of marriage as a union between a man and a woman has prevailed throughout this nation since before its founding," attorney Charles Cooper wrote in the primary brief supporting Proposition 8, adding that "the record of human history leaves no doubt that the institution of marriage owes its existence to the undeniable biological reality that opposite-sex unions, and only such unions, can produce children."

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