WASHINGTON – The Obama administration is quietly considering urging the Supreme Court to overturn California’s ban on gay marriage, a step that would mark a political victory for advocates of same-sex unions and a deepening commitment by President Obama to rights for gay couples.
Obama raised expectations among opponents of the Proposition 8 ban when he declared in last month’s inaugural address that gays and lesbians must be “treated like anyone else under the law.” The administration has until Feb. 28 to intervene in the case by filing a “friend of the court” brief.
The Proposition 8 initiative was approved by California voters in 2008 and overturned a state Supreme Court decision allowing gay marriage. Twenty-nine other states have constitutional amendments banning gay marriage, while nine states and Washington, D.C., recognize same-sex marriage.
An administration brief alone is unlikely to sway the Justices but the federal government’s opinion does carry weigh. A final decision on whether to file a brief has not been made, a senior administration official said. While the Justice Department would formally make the filing, the president is almost certain to make the ultimate decision on whether to file.
Solicitor General Donald Verrilli is consulting with the White House on the matter, said the official, speaking on condition of anonymity.
To some, Obama’s broad call for gay rights during his Jan. 21 inaugural address was a signal that he now sees a federal role in defining marriage. “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” Obama said during his remarks on the steps of the U.S. Capitol. “For if we are truly created equal, than surely the love we commit to one another must be equal as well.”
But officials said Obama was not foreshadowing any legal action and was simply restating his personal views.
Seeking to capitalize on growing public support for gay marriage, advocates are calling on the administration to file a broad brief urging the Justices to make all state bans illegal. “If they do make that argument and the court accepts it, the ramifications could be very sweeping,” said Richard Socarides, an attorney and advocate.