President Obama has been criticized in the past for his reticence over gay rights. His views on the subject are, in his own words, ‘evolving’, but he has begun to act on his inaugural promises by officially expressing his legal opposition to Proposition 8. To be more particular, the Obama administration has filed an amicus brief on the Supreme Court case Hollingsworth v. Perry, which concerns the constitutionality of Prop 8.
In legal terms, an amicus brief is submitted by a party that has no direct involvement with the case at hand, but still holds an interest in the outcome and wants the Supreme Court to be aware of its opinion. So far, the federal government has mostly stayed out of the uproar over the legal issues behind gay marriage, treating its constitutionality as a matter for the states to decide. But in addition, Obama has decided not to use his executive power to defend the federal Defense of Marriage Act before the Supreme Court, which does not recognize same-sex couples for some crucial federal benefits, such as Social Security.
All of this indicates a shift in the president’s priorities concerning LGBT rights, but those hoping for a radical change in policy may be disappointed. For all his stirring rhetoric, Obama’s legal argument is characteristically restrained. His case against Prop 8 is essentially this: since the state of California allows same-sex couples to have nearly all the rights and privileges of ‘normal’ marriage through separate laws for civil unions and domestic partnerships, by denying them the institution of marriage, the state is treating them differently simply for their sexual orientation. This violates the constitutional doctrine of equal treatment for all citizens.This analysis implies that Californians have the right to marry people of whatever gender they like, but this is not necessarily extended to all Americans. According to the federal government, the question of a general right to marriage could be dealt with later.
To some, this is a disappointing compromise, but on the other hand, Obama’s moderation may work out in the long run. The Supreme Court’s agreement with his reasoning will be enough to overturn Prop 8 by itself, according to the Court’s official blog. Additionally, and perhaps more importantly, the decision would set up a precedent that may well be used by other states to revoke similar laws. And SCOTUSblog notes that this though this process takes longer to complete, time is exactly what seems to be on the side of LGBT rights, as the opinions of the Court and the country as a whole gradually change in favor, or at least acceptance of, same-sex marriage.
Whether this is in fact a stratagem employed by the administration remains to be seen, as well as its ultimate success. But to those who have been fighting against Prop 8 for the past four years, Obama’s official support, however belated, is at the very least, a symbolic vindication.
SOURCES
Straight from the horse’s mouth: the Obama administration’s brief
A clear summary and interpretation of the situation from SCOTUSblog
Picture source