The Supreme Court will ultimately decide on two same-sex marriage cases, but the court’s attention-grabbing move has put the pressure on President Barack Obama to clarify his stance on the issue.
When Obama announced in May that he favored same-sex marriage — after previously supporting just civil unions — many took it as a full embrace of same-sex marriage rights. It wasn’t: his nuanced language stopped well short of endorsing the idea that the U.S. Constitution guarantees a right to marry for same-sex couples. He said the issue was best left to the states to decide in the near term.
But the Supreme Court’s decision Friday may have sped up Obama’s timeline.
The Obama administration made clear last year that it would no longer defend the Defense of Marriage Act, the 1996 law that denies federal benefits to same-sex married couples. Obama said he’d concluded that law was unconstitutional. It was the Justice Department that asked the Supreme Court to take a challenge to DOMA, hoping justices would agree to strike it down.
However, the federal government has never taken a stand on the other, potentially more significant case that the justices added to their calendar on Friday: the legal challenge to California’s ban on same-sex marriage, approved in 2008. In 2010, a district court judge struck down Proposition 8 as unconstitutional and found a broad federal right to same-sex marriage. In February, the U.S. Court of Appeals for the 9th Circuit also found the measure unconstitutional, but on narrower grounds.
Though the case transfixed gay rights activists, the Obama administration never weighed in. And when Prop. 8 backers asked the Supreme Court to take the case, the Justice Department was again silent. The department had no duty to file anything since the suit was against the State of California, not the federal government.
The Justice Department could have taken a stand at any point, and could still stay out of it — but now, dodging that question has gotten harder.
“There will be pressure for the Justice Department to weigh in on the Prop. 8 case,” said Richard Socarides, a longtime gay rights activist and White House adviser to President Bill Clinton.
Socarides said that when Obama “evolved” in the direction of support for gay marriage earlier this year, he and his aides seemed eager to let some time pass before confronting the question of whether it was a right every American should be guaranteed.
“I think this federalizes the issue much more quickly than the White House would have liked and may force them to take a position earlier than they would have liked,” Socarides said.
“It’s a fascinating question,” said another prominent gay rights activist, who asked not to be named. “Will they be at the table and which side of the table will they be at?”
In the justices’ order Friday, they did not ask the administration to offer views on the Prop. 8 case. However, court watchers believe several of the justices could put the question of whether there is a federal right to gay-marriage directly to Solicitor General Donald Verrilli.
That’s even more likely if the DOMA case, in which the administration will be arguing, is heard by the court at about the same time as the California gay-marriage ban. The cases are expected to be scheduled for late March, though no dates have been announced.
The campaign to get Obama, the White House and the Justice Department behind a federal constitutional right to same-sex marriage seemed to kick off in earnest on Friday when a prominent lawyer in the fight against Prop. 8 said he’d like to see Obama and Attorney General Eric Holder get off the sidelines in that case.
“Given the stand that the president of the United States and the attorney general of the United States have made with respect to marriage equality, we would certainly hope that they would participate,” Ted Olson said during a conference call with reporters.
“I’m quite confident that if they did participate they would support our position in this case, that the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny,” said Olson, solicitor general under President George W. Bush and the lawyer most likely to argue the pro-gay-marriage side when the justices hear the Prop. 8 case. While Olson and his team urged the high court not to take the case, he’s made clear that now that it has, his team will make a full-court press for the justices to affirm a federal right to gay marriage.
Prop. 8 proponents didn’t echo the call for the Obama administration to weigh in, but did say that the only position it could take consistent with the president’s public statements would be to affirm the state of California’s right to ban gay marriage.
“President Obama has been clear that the states have the right to retain the traditional definition of marriage. The Department of Justice should adhere to the president’s views,” attorney Andrew Pugno told POLITICO via e-mail. Pugno is one of the lawyers for the Prop. 8 defenders who asked the Supreme Court to hear the case.
Obama has never explicitly rejected the notion that the U.S. Constitution could protect the right of gays and lesbians to marry, but his repeated description of the issue as one traditionally and best handled by states seems to undercut the idea that the Supreme Court should declare a federal right to same-sex marriage.
“I’ve just concluded that — for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married. Now, I have to tell you that part of my hesitation on this has also been I didn’t want to nationalize the issue,” Obama said in his May interview with ABC’s Robin Roberts.
Indeed, the president seemed to suggest that it would be a mistake — at least in the short term — to seek or impose a rule that would require all states to recognize gay marriages.
“What you’re seeing is, I think, states working through this issue — in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is going to be worked out at the local level,” Obama said.
Days before the election, Obama reaffirmed that stance.
“Historically, marriages have been defined at the state level,” Obama told MTV on Oct. 26 in response to an edgy question that asserted he’d staked out a “states’ rights” position on the issue. “Ultimately, you know, 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.”
After the Supreme Court’s announcement on Friday, the White House referred questions about the president’s position to the Justice Department. A spokeswoman there declined to comment on that question or on whether the department plans to weigh in on the Prop. 8 case.
To be sure, the justices could resolve both the DOMA and same-sex marriage cases without squarely deciding whether there’s a federal constitutional right to such unions. In both cases, the justices signaled that they might reject the cases on technical grounds.
The DOMA case could also be resolved simply by addressing how much scrutiny courts should give to laws that discrimination against gays and lesbians.
And the 9th Circuit ruling in the Prop. 8 case — a decision which said California couldn’t take away gay marriage rights after it permitted the practice — seemed designed to allow the justices to restore same-sex marriage in the Golden State without making a sweeping ruling that forced the same result in all 50 states.
The Justice Department could back the 9th Circuit ruling or basically remain silent and say it has no position on the question if a Supreme Court justice presses the issue.
“In the California case, I think it would be very easy for the attorney general to stay out of it,” said George Dent Jr., a law professor at Case Western University who believes Prop. 8 is constitutional. “The case is being well-argued on both sides and does not present an issue of interest to the federal government as such.”
But standing mute is likely to anger some in the gay community and leave Obama, who views himself as a champion of gay rights, seeming to sit on his hands as the court confronts what Olson’s co-counsel David Boies has called “the defining civil rights issue of our time.”
Gay rights advocates are hoping that the idea of being on the right side of history will prompt Obama to take a firm public stand in favor of same-sex marriage rights.
”This president has done more for LGBT people than any other president in history,” said Fred Sainz of the Human Rights Campaign. “The Justice Department becoming involved this issue is a natural extension his advocacy of equality on behalf all Americans. On top of that, it’s not a heavy lift….Come on in, the water’s warm.”