Although stopping short of urging the U.S. Supreme Court to hold that gay couples have a fundamental right to marriage, the Obama Administration brief in the California same-sex marriage case charts a legal path towards the eventual undoing of all state gay marriage bans, said a lawyer for the challengers to that state's ban.
"If the Court agrees with the United States that heightened scrutiny applies, that is a clear path to equality in all states across America," said Theodore Boutrous of Gibson, Dunn & Crutcher, a member of the legal team in Hollingsworth v. Perry. "The proponents (of Proposition 8) have never tried to meet the standard because they know they cannot meet it."
The Solicitor General of the United States late yesterday ended speculation about whether the administration would take a position in the case which asks the justices whether the equal protection clause of the 14th Amendment prohibits California from defining marriage as the union of a man and a woman.
"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," wrote Solicitor General Donald Verrilli Jr.
California law, he explained, grants same-sex partners all of the substantive rights and obligations of a married couple, but restricts marriage to opposite sex couples. Seven other states provide same-sex couples rights substantially similar to those available to married couples but only through comprehensive domestic partnership or civil union laws.
"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," added Verrilli. "Proposition 8's denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment's guarantee of equal protection embodies a defining constitutional ideal that 'all persons similarly situated should be treated alike.'"
As it did in the second same-sex marriage case pending before the justices – U.S. v. Windsor, a challenge to the federal Defense of Marriage Act—the government in the Prop. 8 case argues that classifications based on sexual orientation call for the application of heightened scrutiny. It then takes, one by one, the arguments made by Prop. 8 supporters to justify the state ban and shows how, in its analysis, each fails the heightened scrutiny test.
"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," writes the solicitor general. "It indicates that Proposition 8's withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing—petitioners' central claimed justification for the initiative—but instead on impermissible prejudice. Prejudice may not, however, be the basis for differential treatment under the law."
Andrew Pugno, general counsel for ProtectMarriage.com which intervened to defend Prop. 8 in the lower courts, late last night told The National Law Journal, "In his first term as president, Obama clearly stated that Americans can choose a special designation of marriage between man and woman, and that supporters of traditional marriage can hold that position without animus. He later remarked that it would be a 'mistake' to make the debate over redefining marriage into a federal issue.
"Yet today, by stating that the traditional definition of marriage is rooted only in irrational prejudice, the President has impugned the motives and actions of millions of Californians and turned his back on society's long-standing interest in both mothers and fathers raising the next generation."
Pugno is on the legal team headed by Charles Cooper of D.C.'s Cooper & Kirk. They defended Prop 8 in the lower courts after California officials refused to do so. They filed their petition in the Supreme Court after a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit struck down the state constitutional amendment in February 2012.
The administration's approach has been called the "eight-state solution." Besides California, the states permitting domestic partnerships and civil unions are Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. However, Gibson Dunn's Boutrous believes its impact, if adopted by the justices, will be far reaching.
"Their arguments from start to finish would apply to other states," he said. "The argument of the day (against same-sex marriage) is the responsible pro-creation argument. The United States takes it apart piece by piece. It's those same types of arguments that are used in other jurisdictions to justify the exclusion of gays and lesbians from marriage."
And the heightened scrutiny analysis, he added, is "exceedingly important," not just in the marriage context but in other contexts where gay men and women face discrimination.
The justices will hear arguments in the California case on March 26, and in the Windsor case on March 27.