Obama Administration Says California’s Proposition 8 Violates Equal Protection

February 28, 2013

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.

The New York Times’ Adam Liptak says the administration brief backs the challengers to Proposition 8 in their argument that “California voters were not entitled to ban same-sex marriage there ….” Liptak notes that the administration’s action in the Proposition 8 is not terribly surprising since it lodged its brief on the merits in the DOMA case, U.S. v. Windsor, last week arguing against the section of DOMA that bars the federal government from recognizing same-sex marriages. In Windsor, a narrower question is posed, as Liptak notes, saying it will “at most decide whether the federal government can discriminate against same-sex couples even if they married in states that allow such unions. Nine states and the District of Columbia allow same-sex marriage.”

In its first term the Obama administration announced it would stop defending DOMA in court. A group of U.S. House Representatives formed to defend DOMA before the court. But the president continued to evolve on the matter, saying last summer he supported same-sex marriage, but believed it a matter that should be decided on a state-by-state basis. But during his second Inaugural Address the president sounded a much broader approach to equality. “Our journey,” he said, “is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

The administration’s merits brief in Windsor, the DOMA case, argued that DOMA’s Section 3 “violates the fundamental constitutional guarantee of equal protection. The law denies tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples.”

The administration’s DOMA brief also strongly counters the one lodged by the congressmen, which in part, argued that the anti-gay marriage law should not be subjected to a higher scrutiny in part because the LGBT community is politically powerful.

Lesbians and gay men, the administration argues in its Windsor brief, “are a minority group with limited political power. Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action. The vast majority of state voter initiatives directed at gay and lesbian people, even within the last decade, have repealed protections against sexual-orientation discrimination or denied gay and lesbian people the ability to marry.”

Several other briefs were lodged this week, and the ones from a group of Republicans and business leaders drew extensive notice.

In a friend of the court brief supporting Edith Windsor’s challenge to Section 3 of DOMA, 278 employers and business groups argue that DOMA has undermined employers by forcing them to treat some families different than others. “Far from creating uniformity, DOMA obliges employers to treat an employee married to someone of the same sex and an employee married to someone of a different sex unequally.” The groups’ brief extensively lays out the burdens on employers in an array of areas, forcing companies to create different regimes for same-sex spouses and opposite-sex spouses. The brief also notes the situation undermines morale. Some of the companies signing onto the brief include Apple, Adobe Systems, Amazon, CBS, Facebook, Goldman Sachs, Google, Microsoft, Starbucks, Twitter and Viacom.

The Times reported earlier in the week that, “Dozens of prominent Republicans – including top advisers to former President George W. Bush, four former governors and two members of Congress – have signed a legal brief arguing that gay people have a constitutional right to marry ….” The newspaper said the brief would be lodged in Hollingsworth, the Proposition 8 case.