News surfaced the afternoon of Feb. 28 that the Obama administration planned to file an amicus brief in support of efforts to overturn Proposition 8. Within hours, a copy of the brief, which calls for the U.S. Supreme Court to strike California's constitutional ban on same-sex marriage, appeared on the Internet.
The administration joined plaintiffs in asserting that California violated the Equal Protection Clause of the 14th Amendment when it deprived gays and lesbians of the right to marry. Most significantly to LGBT groups nationwide, the brief calls for the Court to review laws discriminating against gays and lesbians using the same heightened level of scrutiny employed in gender discrimination cases. Such a standard would make it difficult for any state to distinguish between same- and opposite-sex couples in any more than a symbolic manner.
“Notwithstanding certain progress, gay and lesbian people—as Proposition 8 itself underscores—are a minority group with limited power to protect themselves from adverse outcomes in the political process,” the brief argues, citing an important factor in applying the Equal Protection Clause.
California voters passed Proposition 8 with 52 percent of the vote during the 2008 general elections that sent Obama to his first term. U.S. District Court Judge Vaughn Walker ruled the law unconstitutional in 2010, a holding that the Ninth Circuit affirmed in a limited decision early last year. Both lower courts found that Proposition 8 failed to present even a rational basis for denying same-sex couples of their previously held right to marry in California. Similarly, the Supreme Court could overturn Proposition 8 without installing a constitutional standard that effectively prohibits same-sex marriage bans nationwide.
Earlier in the week, the administration separately urged the Court to overturn provisions of the Defense of Marriage Act that deny tax and other federal benefits to same-sex spouses.