Gay marriage case offers Supreme Court many options

McClatchy NewspapersMarch 1, 2013 


A rainbow flag, a symbol of gay pride.

BRIAN BAER — Sacramento Bee/MCT

— Opponents of California’s Proposition 8 have served up quite a diverse menu to the Supreme Court.

They share the goal of letting gay couples marry in California. But in a collection of legal briefs, Proposition 8 critics present arguments that range from the aggressive, to the nuanced, to the tightly restrained.

Some, like former California gubernatorial candidate Meg Whitman, actor Clint Eastwood and a host of fellow Republicans, are urging the court to swing for the fences. They want full constitutional protections effectively covering same-sex couples in every state. Others, like the city of San Francisco, likewise support gay marriage, but say the court can also resolve the case technically without involving the Constitution at all.

Still others, like the Obama administration, are proposing a thread-the-needle approach that embraces equality for all same-sex couples but emphasizes a limited immediate legal application to California and seven other states that currently ban gay marriage but offer domestic partnership rights.

“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 issues not present here,” Solicitor General Donald Verrilli Jr. wrote in the administration’s legal brief filed Thursday.

Legally, the administration’s reasoning would only extend initially to Hawaii, Nevada, New Jersey, Oregon, Delaware, Rhode Island and Illinois, as well as California. These states provide civil benefits to same-sex domestic partnerships but, in Verrilli’s words, block them from “solemnizing their union in marriage.” This explicit contrast, the administration argues, violates the 14th Amendment’s equal-protection guarantees.

Tactically, the administration’s relatively restrained argument might appeal to the man many assume will be the swing vote: Justice Anthony Kennedy. Though Kennedy previously has written key opinions striking down anti-gay state laws in Texas and Colorado, the Republican appointee is also a conservative who asserts a belief in federalism, the empowering of states.

Thirty-seven states currently prohibit same-sex marriage, either through statutes or provisions in state constitutions. A broadly written Supreme Court decision that enshrines constitutional protections for such marriages could spur cries of judicial activism and risk racing ahead of the U.S. public. Instead, the tactical reasoning may be that a narrower case could keep the court more closely aligned with evolving public sentiment.

Pew Research Center surveys show that 43 percent of U.S. residents surveyed opposed gay marriage last year, a significant number, but still down from 60 percent in 2004.

“I do think that we’re seeing on a state-by-state basis progress being made,” President Barack Obama said at a news conference Friday, adding that “more and more states (are) recognizing same-sex couples and giving them the opportunity to marry and maintain all the benefits of marriage that heterosexual couples do.”

The California case arose after the state Supreme Court ruled same-sex couples had the right to marry. Voters subsequently changed the state’s constitution in 2008, in the Proposition 8 ballot measure, to limit marriages to those between one man and one woman.

Asked why his administration isn’t asking the court for a broad ruling protecting same-sex marriages in every state, Obama said that “the solicitor general, in his institutional role going before the Supreme Court, is obliged to answer the specific question before them. And the specific question presented before the court right now is whether Prop. 8 and the California law is unconstitutional.”

The administration was not obliged to get involved in the California gay marriage case at all. Once officials weighed in, they could pick and choose their arguments carefully, just like the other groups and individuals filing amicus briefs. At least 62 amicus briefs, also known as friend-of-the court briefs, have been filed so far by both sides.

Some briefs build a case through focusing on a particular population or set of facts.

Facebook, Google and about 100 other U.S. companies, for instance, argued that discrimination against same-sex couples will “impede business efforts to recruit, hire and retain the best workers.” Gay health professionals clarified how homosexuality is an innate characteristic shaped by biology.

Other briefs focus on how the legal decision should be crafted and how far it should reach

The administration, for instance, omitted in its 33-page brief any reference to the technical argument that theoretically could deter Proposition 8 supporters. This is the argument of standing, a legal term that refers to whether a party has a stake in the outcome of a case. In order to sue, people must typically be injured in some way.

After California officials declined to defend Proposition 8 in court, individuals associated with the Sacramento-based took up the case. They say they were injured by the state’s inaction, and they note that the California Supreme Court concluded that Proposition 8 supporters could defend the measure “in lieu of public officials who refuse to do so.”

If the standing hurdle is passed, the court could potentially follow the narrow approach adopted by the 9th U.S. Circuit Court of Appeals. While the appellate court struck down Proposition 8, its reasoning applied only to California. None of the several dozen amicus briefs opposing Proposition 8 reviewed Friday expressly advocated this narrow position.

Many advocates echo the broad constitutional conclusions of Whitman, Eastwood and the other Republicans who signed a brief chiefly authored by former Solicitor General Seth Waxman.

“The right to marry indisputably falls within the narrow band of specially protected liberties that this court ensures are protected from unwarranted curtailment,” the Republicans’ brief states.

Email:; Twitter: @MichaelDoyle10

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