(WASHINGTON) — The Department of Justice filed a brief Thursday in the case of a controversial California ballot initiative that defined marriage as between one man and one woman, asking the Supreme Court to affirm a lower court decision that struck down the measure, known as Proposition 8.
The brief marks the first time that the Obama administration has come out in court against Prop 8.
“The exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection,” wrote Solicitor General Donald B. Verrilli Jr. in a “friend of the court” brief filed in favor of gay and lesbian couples challenging Prop 8.
Referring to proponents of the voter-approved measure who are defending it in court, Verrilli wrote, “Petitioners contend that Proposition 8 serves an interest in returning the issue of marriage to the democratic process, but use of a voter initiative to promote democratic self-governance cannot save a law like Proposition 8 that would otherwise violate equal protection.”
But Thomas Peters, communications director for the National Organization for Marriage, which opposes gay marriage, invoked California’s voters in saying it expected the court to uphold the law.
“NOM expects the Supreme Court to exonerate the votes of over 7 million Californians to protect marriage,” said Peters, whose group is not the one arguing for Prop 8 in court. “The president is clearly fulfilling a campaign promise to wealthy gay marriage donors. There is no right to redefine marriage in our Constitution.”
The Obama administration brief noted that California extends all of the rights and responsibilities of marriage to gay and lesbians, but forbids them the designation of “marriage.”
That circumstance, “particularly undermines the justifications for Proposition 8,” Verrilli wrote.
“The brief pays closest attention to California and the other seven states that grant same-sex couples all the rights and responsibilities of marriage but insist on denying them the favored name,” said Jane S. Schacter, a professor at Stanford Law School. “But it advocates that the court adopt a much tougher, more skeptical approach to any state law that denies same-sex couples the right to marry.”
“That approach is what lawyers call ‘heightened scrutiny,'” she added, “and if it were faithfully applied to all state laws banning same-sex marriage, it would result in the invalidation of those laws. The administration’s brief provides a blueprint for a national right-to-marriage equality, even though it does not advocate that in express terms.”
Stephen I. Vladeck, a professor of law at American University of Law, called it the, “tip of a much larger anti-discrimination iceberg.”
According to the brief, Vladeck said, “states can’t discriminate against gays without a really strong reason — not just with respect to marriage, but adoption, employment, benefits and so on.”
Today, 39 states have laws restricting marriage to opposite-sex couples. This number includes voter-approved constitutional amendments in 30 states barring same sex marriage. Nine states allow gay marriage.
“The brief filed by the solicitor general is a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded,” said Adam Umhoefer executive director of the American Foundation for Equal Rights (AFER), the group behind the challenge of Prop 8.
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