Obama Administration Supports Gay Marriage . . . Sort Of

President_Barack_Obama200px-Rosa_Parks_BookingThe 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.

Here is the Amicus Brief.

39 thoughts on “Obama Administration Supports Gay Marriage . . . Sort Of”

  1. Spot on with this write-up, I really feel this website needs a lot more attention.
    I’ll probably be returning to read more, thanks for the advice!

  2. Most people voted for Obama because they could not bring themselves to vote for Romney and some of the other GOP crazies. Now that that is clear. I am disappointed as usual by Obama administrations failure to really come out for anything including gay marriage. When he does support something it sounds more Republican than Democratic and more corporate than liberal. He was the lesser of two evils.

  3. Yes and thank you Elaine,

    Knew something might be occupying your time…..

  4. AY,

    Julia is nearly nineteen-months-old. She keeps me busy. I so enjoy taking care of her three days a week. She LOVES books. She’s “into” trains and bugs at the moment. It’s such fun being a grandparent.

    Hope all is well with you.

  5. The big mistake happened more than two decades ago by raising up an aberation to a status of mild adoration. All the western countries went for it, leaving some third world countries out on a limb.Religion aside, I’m not religious okay, so how does the average normal guy feel about one otherwise normal guy sticking his dong up the anus of another guy?! Okay, two consenting adults, so keep it out of sight & out of the minds of others. I can live with that as long as we don’t lionise this aberation called homosexuality. Certainly the media & Hollywood has been putting gays on a pedestal for more than 20 years now.
    What if we start lionising alcoholics? Many of us have been there, done that to some small or large degree if we have several decades under our belts. Right now alcoholics are in the trash can, mainly for drunk driving; in Wyoming, many cops cruise the streets after 11pm & pull over as many cars as they can ‘justify’ for a crack in a window or changing lanes (common occurence in Gillette, Wy) so they can get some kind of prize from the police chief for another DUI! (in the state where liquor is mostly purchased at drive through liquor stores!) But imagine a pendulum swing (in the land of pendulum swings) where we feel so sorry for the poor misunderstood alcoholic that he gets away with murder! Okay, I’m libertarian, what everyone needs to be to save this planet from political tyrany, going on now in a mental hospital, school, police station, White House, or other government building near you.. So, of course, I’m for everyone retaining all basic rights, Gods given, nature given, Magna Carta given, Constitution given, Bill of Rights given, including the Human Rights for all, that the UN published in the 50s & ignored until the Citizens Commission On Human Rights revived around 2000 or sooner. So a crime is not a crime if no one is hurt. And even if you hurt yourself, well its obviously immoral if there is no benefit & should be discouraged & not condoned, but not criminalized.
    When I say that homosexuality is an abberation, I’m not in the slightest suggesting that we go back to criminalization or punishment or even verbal bullying. Many homosexuals are very fine people & I count them as friends; some are, shall we say AHs, as in all walks of life. If they need some kind of status to protect them from the automatic attacks from Income Tax & other high crimes the government makes on all of us, okay, they can have a marriage-like status. Even if its nothing to do with government treatment, they should be permited to make the kind of binding union they desire. Just don’t insist on calling it Marriage, which has worked for many for thousands of years. (not for me, I admit, but it still might.) Also, if one of the homosexuals was able to rid himself of this aberation (as has hapened many times, perhaps with Dianetics, or other ways), there needs to be an ‘out’; we have that in divorce for straight people, perhaps a little TOO easy, so I’m sure they would have something similar.
    While we’re on the subject, I think we should be outraged in this country by the disparity of justice. It should be based PRIMARILY on ACTUAL HARM DONE. Secondarilly there can & should be some lesser penalty for putting others at risk; if it is totally deliberate, then it might go into the primary categor, such as attempted murder. Someone somewhere might have classified all the crimes committed versus the punishment, here in the States & elsewhere. Let me know please if you know where that might be. The disparity is enormous; many crimes get higher penalties than murder. Of course we have far too many antisocial psychopaths at the top, trying to run the show their way. Our president is just one of them. Next time this child murderer goes on about getting rid of our 2nd Amendment Rights (right to bear arms against a tyranical government that oversteps its servant status), get the full story from Citizens Commission On Human Rights 800 869 2427 & the National Rifle Association 800 392 8683 or 800 672 3888.
    You have probably heard a lot of nonsense about Wayne LaPierre, the leader of the NRA, especially if you have lived in California as I have. Fact is, he’s a bloody hero! If it were not for him & the NRA, we’d be under Martial Law by now; I might be held indefinitely without trial (or tortured to death if they so desired & I permited such a thing) under Obama’s NDA Act. Not to forget the CCHR. You would not believe the chaos they have prevented in the USA & elsewhere! Most of you have not got a CLUE why the white male terrorist shootings have been occuring from ‘Going Postal!’ around 1987, shortly after Psychiatry & Big Pharma released Prozac, to New Town, Ct & beyond. Obama knows & is as guilty as sin itself! One unsung hero there is Carrie, who has cut funding of your tax dollars to Psychiatry (you know, the political tool of totalitarian & wannabe governments) by billions of dollars these past 2 or three decades! In 2012, Psychiatry Germany had to admit that it planned & implemented the Nazi Holocaust! Find out what psychiatry won’t admit to doing NOW! Call Carrie. Get the data & give her your support

  6. I know that this same sex stuff is important to all but the blog needs to address the statement made by Scalia at the oral argument that voting rights for blacks is an “entitlement”. Couple that topic with ScaliaCare which is the free medical care given those schmucks on the taxpayer dime. That is an entitlement.

  7. LK,

    I think you’re spot on…

    If you consider the impact that the law has on businesses in California you might get the impression that its purely capitalist approach. However, this is one of the most appealed circuits in the Federal court system for some reason… Therein lies my questioning…. As well as the DOMA…. Call me skeptical…

    Elaine, good to see you here…. How’s Julia?

  8. Yep, They took a safe middle ground position but you never know what might happen. No one predicted the healthcare law would be decided on a taxing power issue.

  9. SWM, Yes, it is a good argument, just what one would expect for advocating universal marriage equality. That’s a primary reason I’m really unhappy with the call to make a narrow ruling.

  10. SWM, Thanks for the response. There is something strange going on with the government’s brief IMO and I’m not sure why except perhaps to preview the government’s argument in a ‘clean’ challenge to a state that refuses marriage equality or to crystallize the basis for a government position on marriage equality on a Federal basis or to provide the SCOTUS with a reason to craft a decision that (finally) examines the equal protection argument. I say that because the argument made by the government seems downright self contradictory.

    The brief typically states the history of the original legislation and the response proposition (Prop. 8), the basis and decisions of the case on appeal(s), and the question before the SCOTUS. It then argues that the the three stated aims of Prop. 8 are appropriate to heightened scrutiny (as well as giving a concise explanation of what that is and why it is appropriate) and then goes on to DEMOLISH the legal rationale for Prop. 8. using arguments specific to heightened scrutiny. Finally, they recommend that the finding that Prop. 8 is unconstitutional be upheld.

    The government included the (offending) language:

    The court can resolve this case 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.”

    after arguing the heightened scrutiny issue and the equal protection question.

    It’s been a while since I read a brief but it looks like a pretty typical brief and follows the standard format, aside from what appears to be a glaring contradiction between its actual argument and the opening paragraph of the argument section encouraging a narrow decision and ignoring the implications of equal protection. If I’ve read it incorrectly perhaps a lawyer will correct me because if the government is actually advocating a narrow ruling after having made the more broad case then they’re just being cowardly IMO. Or maybe our Justice Dept. and the Administration is suffering from some kind of weird multiple personality disorder.

  11. “Supporters of marriage rights for same-sex couples applauded the brief. Chad Griffin, who founded the organization that filed the legal challenge to Proposition 8 and now heads the Human Rights Campaign, an advocacy group in Washington, called it “another historic step forward consistent with the great civil rights battles of our nation’s history.” He said President Obama had “turned the inspirational words of his second Inaugural Address into concrete action.”

    Both briefs argue that courts should subject laws making distinctions between straight and gay people to “heightened scrutiny,” requiring a showing that such laws are “substantially related to an important government objective.”

    The administration argues that the factors, including a history of discrimination, that led courts to require heightened scrutiny for laws on gender and illegitimacy should also require it for those addressing sexual orientation.

    The California case is scheduled to be argued March 26 and the one concerning the federal law March 27. 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.”

    Michael D. Shear contributed reporting. NYT

  12. Jonesy:

    “Hes a right leaning fascist Totalitarian corporate tool. He is a liar. A disgrace to the country.”


    Thank you for that measured, thoughtful, and scrupulously fair assay of the President of the United States who recently won re-election by five million votes. And while he’s far from perfect as you vividly point out in that scholarly way of yours, one must still ask: Are all his supporters fascists, liars and disgraces, too? Or perhaps only the misguided ones?

  13. Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School.

  14. ” The Eight-State Solution

    Mark Tushnet

    The U.S. government’s filing in Hollingsworth v. Perry, the California gay marriage case, asks the Court to adopt the “eight-state solution” to the issue. That is, it argues that in states that have given gay and lesbians couples all the rights that otherwise attach to marriage but have withheld the designation “marriage” from their relationships, the federal Constitution requires that the states make that designation available to those couples.

    This would eliminate what seemed to some legislators, for example recently in Illinois, a compromise position. And, in so doing, the eight-state solution would force legislators in other states to an all-or-nothing choice. Is that a perverse incentive, or more like holding legislators’ feet to the fire? The eight-state solution tells legislators that, despite what they might prefer, they can’t avoid confronting the issue of marriage equality by adopting something just a bit short of that. (Presumably, even were the eight-state solution to become the law of the land, legislators could avoid enacting full marriage equality by going less far than California and Illinois did in equalizing the rights available to straight and gay/lesbian couples.)

    Does the eight-state solution illustrate a slippery slope? Maybe, if one thought that, absent the availability of that solution, the Court would not have been able to craft a position short of full marriage equality nation-wide. Note, though, that Judge Reinhardt for the Ninth Circuit was able to craft a one-state solution resting on characteristics of what happened in California that had not happened anywhere else.

    Finally, I think it’s of interest that Illinois’s attorney-general joined an amicus brief supporting full marriage equality, after the state legislature enacted and the state’s governor signed an “everything but the name” statute. I’ll preempt Sandy Levinson by observing that this might be one consequence of the presence on the state level of quite non-unitary executive branches.” Balkinization blog

  15. Lotta, I did a little research but I am not a constitutional lawyer so it be lacking. The cases are on a different footing: there was (and is) no question that the Equal Protection clause did subject racially discriminatory laws to strict scrutiny, while that–whether the Equal Protection clause applies to bring sexual preference discrimination into any constitutional question at all–is the very matter at issue here.

    On that point, it seems obvious that, if a state grants all the emoluments of marriage to gay people as well as straight people, they can’t then say but oh you can’t actually get a marriage license. Yes this is splitting the baby. Yes this is an attempt to reach what is politically tolerable to half the country, where Idaho and South Carolina aren’t made to legalize something that they seriously don’t want to legalize. Blouise, I always read the tory Sullivan on gay marriage issues because he actually walks the walk and has a vast amount of experience on the matter.

  16. In order to shove a liberal agenda you first have to BE a Liberal, which Obama is not. Hes a right leaning fascist Totalitarian corporate tool. He is a liar. A disgrace to the country.

  17. “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 question for us in the not-so-enlightened jurisdictions is just what effect this will have on the full faith and credit clause (FFC) argument which would compel states to recognize gay marriage unless against their manifest public policy — as it is in Virginia. If the full faith and credit cause can be avoided it will be unless the right rises to a constitutional protection. We then could have the crazy situation we have now where a same sex marriage celebrated in California would not be recognized in Virginia. That won’t happen with a full blown constitutional right which is immune from the so-called “public policy” exception to the FFC.

    Bad solution leading to a bad policy choice.

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