The Obama administration on Thursday declared that gay marriage can be a right that deserves constitutional protection, supercharging a Supreme Court battle that started with California voters and is now shooting for the history books.
Shedding its earlier caution, the administration forcefully asserted in a key legal brief that the Constitution's equal-protection guarantees extend to same-sex couples seeking a California marriage license. The declaration was both voluntary, because the administration wasn't required to take a position on the state's Proposition 8, and emphatic.
"Proposition 8, by depriving same-sex couples of the right to marry, denies them the dignity, respect and stature accorded similarly situated opposite-sex couples under state law," Solicitor General Donald Verrilli Jr. wrote.
Subtly, though, the administration indicates that the Supreme Court can focus on the "particular circumstances" found in California and seven other states that likewise grant domestic partnership rights but not full marriage benefits. The designation of marriage, Verrilli noted, "confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match."
More broadly, the administration's argument is that any laws based on sexual orientation require "heightened scrutiny" from courts would potentially affect all states.
The 33-page brief signed by Verrilli thrusts the administration into the potentially landmark gay marriage case to be heard by the court on March 26. It also puts the administration on the opposite side of 37 states that expressly prohibit same-sex marriage through either a statute or a provision in the state's constitution.
"The exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest," Verrilli wrote.
The Obama administration's argument applies specifically to California and other states that provide same-sex couples with civil and legal benefits but deny them the full-blown ability to marry.
The administration could also have chosen to take a less aggressive stance, similar to the 9th U.S. Circuit Court of Appeals.
The 9th Circuit upheld the San Francisco-based trial judge who struck down the state ballot measure, but in a way that applied the ruling strictly to California. Rather than finding a broad constitutional right to same-sex marriage, the appellate panel concluded simply that California could not retract a right once it had been extended.
The Obama administration opted to swing for the fences, concluding that same-sex couples were protected by the 14th Amendment's guarantee of "equal protection of the laws." If adopted by the court, this would effectively undermine other state laws or constitutional provisions banning same-sex marriage rights.
"Proposition 8's withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing, (the) central claimed justification for the initiative, but instead on impermissible prejudice," Verrilli wrote.
Thursday was the deadline for amicus briefs to be filed by Proposition 8 opponents. These included one filed by openly gay California Assembly Speaker John A. Perez and another filed by the San Francisco-based Bay Area Lawyers for Individual Freedom. On Wednesday, California Attorney General Kamala Harris filed the state's brief opposing Proposition 8.