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White House: Prop. 8 Based on ‘Impermissible Prejudice’

Supreme Court will hear oral arguments later this month, and the U.S. bishops have asked Catholics to pray and fast for an outcome that protects traditional marriage.


| Posted 3/4/13 at 5:00 PM


WASHINGTON — On Feb. 28, the Obama administration filed a brief with the U.S. Supreme Court that attacked Proposition 8, California’s voter initiative that banned legal marriage for same-sex couples, as evidence of “impermissible prejudice.”

The brief filed by the Department of Justice claimed that Proposition 8 violated the U.S. Constitution’s equal-protection clause. It asked the high court to overturn the California law and also to scrutinize laws in the seven states that now allow civil unions for same-sex couples, with the implication that they should be replaced with legal marriage.

It was the latest milestone in the president’s “evolving” view of same-sex "marriage," and legal experts and activists on both sides of the issue reacted strongly to the administration’s effort to influence the high court, which will soon hear oral arguments on two marriage cases dealing with Proposition 8 and the Defense of Marriage (DOMA), the federal law which defines marriage as a union of one man and one woman. The administration is arguing against DOMA’s constitutionality.

“The president’s 'evolution' on marriage has been awfully fast. He was in favor of marriage, and then in favor of redefining marriage, but willing to leave it to the states,” said William Duncan, the director of the Marriage Law Foundation, a legal organization that defends marriage as the union of a husband and wife.

“Now [he’s] willing to leave it to some of the states, but at least eight states ought to be forced by the federal courts to redefine marriage, and it will get more aggressive in promoting marriage redefinition as time goes by,” he said.

“Is there really any likelihood that the administration believes that only the states with civil unions should be forced as a constitutional matter to redefine marriage but the other states should not?” added Duncan, who noted that the administration also asked for time to argue its position before the high court.

On March 1, the U.S. Conference of Catholic Bishops registered strong concern about the outcome of the high-profile cases, though the conference statement did not comment on the administration’s brief. The USCCB called on Catholics to fast and abstain from meat on all Fridays until the conclusion of the Year of Faith. The faithful were asked to pray that “the justices of the Supreme Court … uphold the authentic meaning of marriage as the union of one man and one woman, a good in itself and for all of society.”

Oral arguments for Proposition 8 are scheduled for March 26, the same day as the March for Marriage, and the arguments for DOMA will follow on March 27. Rulings are expected by late June.


The Evolutionary President

During his 2008 president campaign, Obama said he opposed same-sex “marriage,” but during his first term, the White House announced that it would no longer defend DOMA in the courts. Congress took up that responsibility, hiring former Solicitor General Paul Clement, a top advocate who has argued 65 cases before the U.S. Supreme Court.

During the 2012 election year, as voters in four states considered bills related to same-sex "marriage," the president suggested that marriage law should be set by the states, not Washington, a position articulated in the administration's brief for the DOMA case.

Last May, in an ABC interview, Obama cited “Christ sacrificing himself on our behalf” as well as “the Golden Rule” as explanations for why “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.”

In the same interview, however, Obama said that the states “are 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.”

Yet legal experts and activists agree that the administration’s brief in the Proposition 8 case essentially asked the justices to impose same-sex “marriage” in California and the seven other states that now offer civil unions: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.

Thus, while civil unions for same-sex couples were once endorsed by the president, the Department of Justice brief in the Proposition 8 case argued that “the designation of marriage … confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match."

Obama’s position has shifted so dramatically on the issue that a March 4 CNN article speculated openly that he might seek to impose same-sex “marriage” nationally during his second term, overriding the will of individual states.

“Will Obama's next evolutionary step seek change in the 41 states that currently define marriage as between one man and one woman?” the article wondered. “As a second-term president, he certainly has the clout.”

The Human Rights Campaign, a leading advocate of “marriage equality,” welcomed Obama’s effort to make good on his stirring support for the cause during his 2013 inaugural address.

“While the Justice Department has actively argued against the constitutionality of DOMA in court, this brief marks the first time the Obama administration has weighed in on the constitutionality of a state law barring marriage for same-sex couples,” said the Human Rights Campaign in a statement released after the brief was filed.


‘Utter Unreliability’

But Ed Whelan, a constitutional scholar who blogs at National Review’s Bench Memos, argued in a March 1 post that the president had contradicted his previous position on the issue.

“Up until last year, President Obama publicly purported to support traditional marriage laws in the states while also advocating robust civil unions for same-sex couples. With yesterday’s amicus brief, Obama now maintains that the position that he held until last year is unconstitutional — that a state can’t confer on same-sex couples the legal incidents of marriage without also calling their relationships marriages,” stated Whelan.

“What a stark example of the utter unreliability of the ‘living Constitution’ approach. Given the laughable instability of Obama’s constitutional thinking, why should anyone accord his views any respect?” said Whelan in his blog post.

Other legal experts have acknowledged that the administration’s shifting policy on same-sex "marriage" and states’ rights could backfire when the high court hears oral arguments. A Feb. 28 story in The New York Times reported that “Solicitor General Donald B. Verrilli Jr. will probably present the federal government’s position in both cases, and he is likely to be questioned closely about changes and possible inconsistencies in the administration’s position.”

The administration’s brief also argued that a tougher standard of “heightened scrutiny” should be applied to states that have approved civil unions for same-sex couples but not legal marriage. Given the long history of discrimination against persons with same-sex attraction, laws that make distinctions based on sexual orientation, the brief said, required a more demanding level of judicial review.

Further, the brief argued that the rights and benefits conferred on same-sex couples in civil unions in California showed that the public already affirmed the value of these unions, and only prejudice, misguided or not, could account for the ban on legal marriage for such couples.

“They establish homes and lives together, support each other financially, share the joys and burdens of raising children and provide care through illness and comfort at the moment of death,” stated the brief.

Thomas Peters, a spokesman for the National Organization for Marriage, the leading group supporting marriage as a union between one man and one woman,.was skeptical that the high court would be influenced by the administration's arguments.

“The president weighing in on behalf of gay-marriage advocates puts the lie to their legal claim that [same-sex couples] are politically powerless," Peters told the Register.

Meanwhile, Andrew Pugno, the co-author of Proposition 8 and lead counsel at, a coalition of activist groups opposed to same-sex “marriage,” rejected the implication that Californians who voted for Proposition 8 were motivated by an “impermissible prejudice.”

In a public statement, Pugno said that Obama “has impugned the motives of millions of Californians, turned his back on society’s long-standing interest in both mothers and fathers raising the next generation and disregarded the rights of each state to decide for itself whether to redefine marriage.”

Joan Frawley Desmond is the Register’s senior editor.