Obama Administration Urges SCOTUS To Strike Down Proposition 8

The Obama Administration has weighed in on the Supreme Court's other high profile same-sex marriage case.

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Later this month, two cases dealing with same-sex marriage will be heard by the Supreme Court. One of those cases, United States v. Whitney, deals with the Constitutionality of Section Three of the Defense of Marriage Act, something which the Obama White House has already argued is unconstitutional. The second case, of course, is Hollingsworth v. Perry, which deals with California’s Proposition 8, the referendum which outlawed same-sex marriage and which was struck down at both the District Court and Court of Appeals levels. As I noted, the opinion of the Obama Administration on DOMA is already well known and, indeed, the Solicitor General had already filed an amicus curiae (“Friend Of The Court”) brief in that case, what was unknown was whether the Administration would take a side in the Proposition 8 case. Yesterday, they did so in a filing that urges the Justices to strike down the law, but stops short of arguing for a ruling that would find a Constitutional right to same-sex marriage nationwide:

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.

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 California 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.

Indeed, as  I noted at the time that the 9th Circuit Court of Appeals struck Proposition 8 down, the ruling that they issued was far more restrictive than the one that had been issued at the District Court level. Under that first ruling, same-sex marriage laws across the nation were potentially in danger due to the fact that the District Judge had ruled that laws against same-sex marriage were, in and of themselves, a violation of the 14th Amendment Equal Protection Clause. The Court of Appeals, by contrast took the more conservative route of finding that Proposition 8 was unconstitutional in part because it took away a right that had already been granted to gay and lesbian couples by the California Supreme Court, and also because the fact  that California already. allows gay couples rights substantially similar, though not identical, to marriage, then a law forbidding gays from getting enjoying the status of marriage was a violation of the Equal Protection Clause.

As Lyle Denniston explains, that’s essentially the argument that the Administration makes in its brief:.

In the brief that it filed tonight, the federal government urged the Court to declare Proposition 8 unconstitutional, but it did not go as far as supporters of same-sex marriage would have liked and argue that all same-sex couples, throughout the United States, should necessarily have the right to marry.  That question, it told the Court, could be decided later.  Instead, it wrote, when a state such as California allows committed same-sex couples to have virtually all of the rights and benefits of marriage through laws allowing civil unions or domestic partnerships, but doesn’t allow those couples to get married, it is treating the same-sex couples differently because of their sexual orientation.  Because that different treatment, the government explains, makes no sense, it violates the Constitution’s requirement that everyone will be treated equally.  Moreover, the government observed, “California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8” — that is, promoting the conception and rearing of children.

If the Court were to agree with the federal government, that would be enough to decide the case in the challengers’ favor and rule that Proposition 8 cannot stand.  The Court would not need to decide (as the trial court did in the case) whether there is a broad constitutional right for same-sex couples to get married.  And its ruling wouldn’t have any immediate effect beyond the eight states – in addition to California, Rhode Island, New Jersey, Delaware, Oregon, Nevada, Hawaii, and Illinois – that currently have such civil unions and domestic partnerships.  However, the Court’s reasoning might then lay the groundwork for it to strike down other states’ laws banning same-sex marriage, even when the states do not offer a civil union for same-sex couples.   But that might take a while, by which point the country and the Court might be more ready to do so – which may well have been the Obama administration’s goal all along..

One of the purposes of amicus briefs is to bring to the Court’s attention arguments that the main parties to the case either haven’t raised, or which they aren’t emphasizing in their pleadings for reasons of legal strategy. In this case, the parties challenging Proposition 8 are urging the Court to make the broadest based ruling possible, something that mirrors the ruling of the District Court Judge which could potentially spell the end to laws against same-sex marriage across the country. The Solicitor General, on the other hand, while endorsing the argument that laws against same sex-marriage cannot be supported under even the lowest level of legal scrutiny under the Equal Protection Clause, also provides the Court with a way to strike down Proposition 8 without necessarily having nationwide implications. At the very most, a ruling that adopted the logic of the government’s brief would have an impact in those states that currently provide for civil union-type status for gay couple, but which forbid them to marry. Currently, at least two of those eight states — Illinois and Rhode Island — are at various stages of the legislative process while others, such as Hawaii and Delaware, are reportedly actively considering mounting such efforts in the near future. Others, such as New Jersey and Oregon, are states where polling has indicated widespread support for legalizing same-sex marriage. So, in the end, this type of ruling may not end up being nearly as controversial as one might thing, and that’s one reason the Court, or more specifically Justice Anthony Kennedy, might want to go down this road.

The Perry case will be argued at the end of the month, and will likely be decided at the very end of the Court’s term in June.

Here’s the brief:

12-144 UnitedStates by Chris Geidner

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. C. Clavin says:

    Not concerned about this at all.
    The Koch’s have spent a ton of money trying to suppress voters rights…hence Scalia’s ridiculous outburst re: the Voting Rights Act yesterday.
    Scalia is simply doing his owner’s bidding. It’s not about race…it’s about suppressing Democratic voters…a major effort of the Koch’s.
    The Koch’s support gay rights.
    It’ll be fine.

  2. matt bernius says:

    Should also be noted that an increasing number of Republicans — including many well known ones — are signing onto another amicus brief in support of striking down prop-8:


  3. Tyrell says:

    Evidently the will of the people expressed in a legal election means nothing to this administration.

  4. matt bernius says:

    And how did you feel about segregation laws?

  5. edmondo says:

    The Obama Administration has time to defend gay marriage (even though it’s input seems superfluous) yet it cannot find a single wrongdoer on all of Wall Street after is crashed the global economy.

    Strange piorties to say the least. “Change”seems pretty dependent upon campaign contributions.

  6. Mikey says:

    @Tyrell: One very significant purpose of government by constitutional representative republic is to prevent the rights of disfavored minorities being run over by the will of the majority. So, sometimes, “the will of the people expressed in a legal election” will be overridden. Deal with it.

  7. OzarkHillbilly says:


    Evidently the will of the people expressed in a legal election means nothing to this administration.

    So in other words, if I was able to get a law passed in your state by mandate saying people named Tyrell are not allowed marital rights, you’d be OK with it because of majority rules?

    Riiiight… You’re brilliant.

  8. Al says:


    James Madison would like a word with you.

  9. swbarnes2 says:

    Gay marriage is coming. I wish Obama had said a word in favor of upholding the VRA instead. We lose that, thousands and thousands will practically lose their vote.

    Y’all know that for black people, voting is a “racial entitlement”, according to conservatives now, right?

  10. Jeremy R says:


    Gay marriage is coming. I wish Obama had said a word in favor of upholding the VRA instead.

    He has, a number of times. For example:


  11. Tyrell says:

    @swbarnes2: The VRA has fulfilled its purpose and time to move on.

  12. @Tyrell: And it’s the Supreme Court’s job to decide public policy when the United States Constitution (Amendments XIV and XV) clearly gives that prerogative to Congress?

  13. Scott O says:

    @Tyrell: What needs to move on is Antonin Scalia.

  14. Laurence Bachmann says:

    @Tyrell: FYI Tyrell, we are a nation of laws. The will of the majority may never violate another citizen’s Constitutional Rights. We are granted these rights by virtue of our citizenship, not by virtue of a referendum. Any fair application of the 16th Amendment’s equal protection clause must find that a right or privilege extended to you must be extended to me. And yes, states may write their own marriage laws, but they may not exclude the couples they dislike. Is this concept really new to you?

  15. OzarkHillbilly says:

    @Scott O:

    What needs to move on is Antonin Scalia.

    Couldn’t have said it better.