by Jeremy Leaming
The Obama administration is weighing in on the constitutional challenge to California’s anti-gay initiative Proposition 8. And like it did in a separate case before the Supreme Court challenging the so-called Defense of Marriage Act, the administration is advancing a call for equality.
The case, Hollingsworth v. Perry is from the U.S. Court of Appeals for the Ninth Circuit, which last
year invalidated Proposition 8, in part, because it “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.”
The Obama administration had no obligation to weigh in, but did so on the last day to lodge briefs with the high court.
“California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important government interest. Proposition 8 thus violates equal protection,” the administration’s brief states.
SCOTUSblog’s Lyle Denniston says the administration’s brief “could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.”
Denniston continues, “What the brief endorsed is what has been called the ‘eight-state solution’ – that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through ‘civil unions’) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.”
The administration’s brief nonetheless provides what could also be seen as a robust call for equality stretching from coast to coast. For example, the administration argues that laws classifying lesbians and gay men should be subject to “heightened scrutiny.”
“For certain protected classes, however, heightened scrutiny enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and provides an enhanced measure of protection in circumstances where there is a greater danger that the classification results from impermissible prejudice or stereotypes. Because sexual orientation is a factor that ‘generally provides no sensible ground for different treatment,’ laws that classify based on sexual orientation should be subject to heightened scrutiny,” the brief states.
court ruling that invalidated a major provision of DOMA as a violation of the Constitution’s equal protection clause.) 
Hardly surprising – though rather entertaining – is Senate Minority Leader Mitch McConnell’s reaction to President Obama’s second Inaugural Address. McConnell bemoaned the speech as marking a return to “The Era of Liberalism.” This is the same fellow who went before a right-wing outfit early in Obama’s first term to proclaim his top priority was to ensure there would be no second Obama term.