New York Times – U.S. Asks Justices to Reject California’s Ban on Gay Marriage

U.S. Asks Justices to Reject California’s Ban on Gay Marriage
By JOHN SCHWARTZ and ADAM LIPTAK
Published: February 28, 2013 202 CommentsEngaygementgolddiamondRing Ad

The Obama administration threw its support behind a broad claim for marriage equality on Thursday, and urged the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage there.
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In a forceful argument, the administration claimed that denying gay couples the right to marry violates the Constitution’s equal protection clause. It said that Proposition 8, the state’s ban on same-sex marriage, should be subjected to “heightened scrutiny” — a tough test for any law — and stated flatly that “Proposition 8 fails heightened scrutiny.”

That argument is similar to the one made in the administration’s brief in a second case before the Supreme Court concerning the Defense of Marriage Act of 1996, which the administration has also asked the court to declare unconstitutional.

The latest brief, filed late Thursday, does not, however, ask the court to declare such bans unconstitutional nationwide; instead, it focused on Proposition 8, which was approved by voters in 2008 and is before the court in this case. That law was passed by a voter initiative just months after the state’s Supreme Court ruled that same-sex couples could marry. The brief notes that opponents of same-sex marriage in the Californ

ia case have argued that the state offers, through the equivalent of domestic partnerships, a marital state in all but the name.

The government also points out that seven other states — Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island — have a similar all-but-marriage frameworks, and says that “the designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”

While the brief does not call explicitly for the court to strike down the laws in the seven other states, the implication of its argument is clear. Attorney General Eric H. Holder Jr. issued a statement that tied the government’s argument into the fundamental struggle against discrimination and for civil rights, saying that the brief “seeks to vindicate the defining constitutional ideal of equal treatment under the law.” He said that the court’s decisions concerning the two same-sex marriage cases “are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our nation as a whole.”

The government’s brief concludes with a ringing denunciation of the California ban on same-sex marriage, which it said is based in “impermissible prejudice.”

It then cited a concurrence in a 2001 Supreme Court case that said prejudice might not rise “from malice or hostile animus,” and might well be the result of “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”

No matter, the brief said. “Prejudice may not, however, be the basis for differential treatment under the law.”

The author of that concurrence is Justice Anthony M. Kennedy, who is expected to be a crucial voice within the court in both of the current cases.

Andrew P. Pugno, the general counsel for supporters of Proposition 8, called the administration’s brief very disappointing. “By arguing that Proposition 8 is rooted only in irrational prejudice, the president has impugned the motives of millions of Californians, turned his back on society’s longstanding 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,” he said.

The federal government is not a party to the California case, Hollingsworth v. Perry, No. 12-144, and was not required to take a position in it. But the lawyers who filed the challenge to Proposition 8, Theodore B. Olson and David Boies, along with gay rights groups, lobbied for the brief, saying the administration could not stay silent on the issue.

The broad outlines of the administration’s position in the California case are similar to those it filed in a brief last week in a same-sex marriage case in which it is a party, United States v. Windsor, No. 12-307. But that case presents only the narrower question of the constitutionality of part of the federal Defense of Marriage Act, which defines marriage as the union of a man and a woman for

 

the purposes of more than 1,000 federal laws and regulations.

The Supreme Court’s ruling in the Defense of Marriage Act case 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.The case from California presents the broader question of whether there is a constitutional right to same-sex marriage in the states that do not allow it, which is why the brief is significant. It is uncertain, however, that the Supreme Court will end up deciding that broad question. The court may well avoid the issue on technical grounds or rule in a way that applies only to California.

Until not long ago, the administration was thought likely to stay out of the California case, partly as a matter of historical practice and partly to be true to President Obama’s public position on same-sex marriage. The federal government took no position in 1967 in Loving v. Virginia, the case in which the Supreme Court struck down bans on interracial marriage, or in 2003 in the last major gay rights case, Lawrence v. Texas, which struck down state laws making gay sex a crime.

Moreover, when Mr. Obama announced his support for same-sex marriage, he said the matter was for the states to decide.

On the other hand, Mr. Obama has long opposed Proposition 8.

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I am not in favor of gay marriage,” Mr. Obama told MTV News in 2008. “But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that’s not what America’s about. Usually, our constitutions expand liberties, they don’t contract them.”

But Mr. Obama has since embraced a more sweeping view of marriage equality. “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said in his Inaugural Address, “for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

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.

NEW YORK TIMES – Republicans Sign Brief in Support of Gay Marriage

Republicans Sign Brief in Support of Gay Marriage
By SHERYL GAY STOLBERG
Published: February 25, 2013 17 Comments

WASHINGTON — 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, a position that amounts to a direct challenge to Speaker John A. Boehner and reflects the civil war in the party since the November election.

The document will be submitted this week to the Supreme Court in support of a suit seeking to strike down Proposition 8, a California ballot initiative barring same-sex marriage, and all similar bans. The court will hear back-to-back arguments next month in that case and another pivotal gay rights case that challenges the 1996 federal Defense of Marriage Act.

The Proposition 8 case already has a powerful conservative supporter: Theodore B. Olson, the former solicitor general under Mr. Bush and one of the suit’s two lead lawyers. The amicus, or friend-of-the-court, brief is being filed with Mr. Olson’s blessing. It argues, as he does, that same-sex marriage promotes family values by allowing children of gay couples to grow up in two-parent homes, and that it advances conservative values of “limited government and maximizing individual freedom.”

Legal analysts said the brief had the potential to sway conservative justices as much for the prominent names attached to it as for its legal arguments. The list of signers includes a string of Republican officials and influential thinkers — 75 as of Monday evening — who are not ordinarily associated with gay rights advocacy, including some who are speaking out for the first time and others who have changed their previous positions.

Among them are Meg Whitman, who supported Proposition 8 when she ran for California governor; Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York; Stephen J. Hadley, a Bush national security adviser; Carlos Gutierrez, a commerce secretary to Mr. Bush; James B. Comey, a top Bush Justice Department official; David A. Stockman, President Ronald Reagan’s first budget director; and Deborah Pryce, a former member of the House Republican leadership from Ohio who is retired from Congress.

Ms. Pryce said Monday: “Like a lot of the country, my views have evolved on this from the first day I set foot in Congress. I think it’s just the right thing, and I think it’s on solid legal footing, too.”

Jon M. Huntsman Jr., the former Utah governor, who favored civil unions but opposed same-sex marriage during his 2012 presidential bid, also signed. Last week, Mr. Huntsman announced his new position in an article titled “Marriage Equality Is a Conservative Cause,” a sign that the 2016 Republican presidential candidates could be divided on the issue for the first time.

“The ground on this is obviously changing, but it is changing more rapidly than people think,” said John Feehery, a Republican strategist and former House leadership aide who did not sign the brief. “I think that Republicans in the future are going to be a little bit more careful about focusing on these issues that tend to divide the party.”

Some high-profile Republicans who support same-sex marriage — including Laura Bush, the former first lady; Dick Cheney, the former vice president; and Colin L. Powell, a former secretary of state — were not on the list as of Monday.

But the presence of so many well-known former officials — including Christine Todd Whitman, former governor of New Jersey, and William Weld and Jane Swift, both former governors of Massachusetts — suggests that once Republicans are out of public life they feel freer to speak out against the party’s official platform, which calls for amending the Constitution to define marriage as “the union of one man and one woman.”

By contrast, the brief, shared with The New York Times by its drafters, cites past Supreme Court rulings dear to conservatives, including the Citizens United decision lifting restrictions on campaign financing, and a Washington, D.C., Second Amendment case that overturned a law barring handgun ownership.

“We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8,” said Ken Mehlman, the former chairman of the Republican National Committee, who came out as gay several years ago. He is on the board of the American Foundation for Equal Rights, which brought the California suit, and has spent months in quiet conversations with fellow Republicans to gather signatures for the brief.

In making an expansive argument that same-sex marriage bans are discriminatory, the brief’s signatories are at odds with the House Republican leadership, which has authorized the expenditure of tax dollars to defend the 1996 marriage law. The law defines marriage in the eyes of the federal government as the union of a man and a woman.

Polls show that public attitudes have shifted drastically on same-sex marriage over the past decade. A majority of Americans now favor same-sex marriage, up from roughly one third in 2003.

While Republicans lag behind the general population — the latest New York Times survey found a third of Republicans favor letting gay people marry — that, too, is changing quickly as more young people reach voting age. Several recent polls show that about 70 percent of voters under 30 back same-sex marriage.

“The die is cast on this issue when you look at the percentage of younger voters who support gay marriage,” said Steve Schmidt, who was a senior adviser to the 2008 Republican presidential nominee, Senator John McCain of Arizona, and who signed the brief. “As Dick Cheney said years ago, ‘Freedom means freedom for everybody.’ ”

Still, it is clear that Republican backers of same-sex marriage have yet to bring the rest of the party around to their views. Mr. Feehery said there are regional as well as generational divisions, with opposition especially strong in the South. Speaking of Mr. Boehner, he said, “I doubt very seriously that he is going to change his position.”

Experts say that amicus briefs generally do not change Supreme Court justices’ minds. But on Monday some said that the Republican brief, written by Seth P. Waxman, a former solicitor general in the administration of President Bill Clinton, and Reginald Brown, who served in the Bush White House Counsel’s Office, might be an exception.

Tom Goldstein, publisher of Scotusblog, a Web site that analyzes Supreme Court cases, said the amicus filing “has the potential to break through and make a real difference.”

He added: “The person who is going to decide this case, if it’s going to be close, is going to be a conservative justice who respects traditional marriage but nonetheless is sympathetic to the claims that this is just another form of hatred. If you’re trying to persuade someone like that, you can’t persuade them from the perspective of gay rights advocacy.”

This article has been revised to reflect the following correction:

Correction: February 26, 2013

An earlier version of this article misstated the year in which Steve Schmidt was a senior adviser to Senator John McCain. It was 2008, not 2004.

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