The Obama administration appears to have celebrated the unveiling of the statue of Rosa Parks in the Capitol by arguing that same-sex couples should be allowed to move halfway up the marital bus. In its amicus brief filed his week in Hollingsworth v. Perry. The Administration spent much of its first term fighting to uphold the Defense of Marriage Act (DOMA) and refusing to accept that same-sex couples are entitled to the same protection as other couples. Now, the Administration is advancing a highly nuanced argument that conspicuously falls short of calling for a constitutional right to marriage for all couples. Instead, it is arguing for a type of constitutional balkanization where gay and lesbian couples would be given equal treatment under an “eight-state” solution.
The Obama Administration actually pushes the Court to avoid recognizing a full equal protection for same-sex couples to marry: “The Court can resolve this case,” the new brief said, “by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.”
What the Administration is pushing instead of full recognition is to focus only on those states which have already extended added right to same-sex couples. Thus, if a state already extends rights to same-sex marriage for civil unions, it should not be able to stop short of full recognition of marriage. The argument has a truly menacing message for the campaign for same-sex marriage. In new states, opponents will likely cite this argument to show that any compromise on civil union will force it to go all the way toward recognition — potentially slowing or even reversing the progress seen in recent years.
Despite his professions of support for gay rights, Obama has always been publicly timid in recognizing same-sex marriage. Indeed, Obama was openly upset when Biden forced his hand on the issue by going public with his own support.
The brief below reflects the continued struggle Obama has with gay rights. While it finally supports a heightened review, it does so with a highly restrictive application.