The Beginning Of The End Of Same-Sex Marriage Bans

The Obama Justice Department released a brief backing the end of California's Prop 8, which overturned the state's law allowing same-sex marriage.  The argument that the Justice Department makes here, backed by the President himself, is the end of same-sex marriage bans.

It goes something like this:

1. Hi, we're the Executive Branch.  Maybe you've heard of us.
2. California's Prop 8 basically allows taking rights away from a specific class of people.
3. We think that warrants "heightened scrutiny."
4. This means California has to have an ironclad, 100% bulletproof reason for doing this.
5. Here are the reasons California laid out for doing this.  We list them.
6. None of these reasons come anywhere close to the ironclad, 100% bulletproof level. 
7. That leaves discrimination for its own sake.  That's unconstitutional.
8. Junk Prop 8 and let people marry in any state with legalized same-sex marriage.
9. Oh, and by the way, the logical endpoint of our argument, hint hint...
10. ...Is for you guys to say "Hey, we can't come up with an ironclad, 100% bulletproof reason either...
11. ...And if you then hold all same-sex marriage bans in states to heightened scrutiny...
12. ...None of them would pass muster, period.  They'd have to go too."
13. Voila!  End of same-sex marriage bans.

Now, will SCOTUS actually get to 13 there?  Lyle Denniston at SCOTUSBlog says no, and argues the DoJ stops at 8, where 9-13 are simply implied.  That's true to a point, but the implication is strong.

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution.  What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married.  The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

“The Court can resolve this case,” the new brief said, “by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.”   That final phrase was the brief’s strongest indication that the administration is not yet ready to take a firm position on whether the “fundamental right to marry” that the Court has recognized repeatedly is a right that should be open also to same-sex couples.

The eight states that apparently would be covered by the argument the Solicitor General has now made are California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

Some believe the brief is woefully inadequate, mostly those who have always found the President lacking in some way.  Marcy Wheeler goes as far to call the President a liar and a coward:

Mr. Obama has consistently lied about his dedication to civil liberties, privacy and the Fourth Amendment, I guess it should not be shocking that he would lie about his dedication to civil rights for all, across all the states, in the form of marriage equality. And that is exactly what he has done. And as Denniston’s article makes clear, this decision bore the active participation and decision making of Obama personally. The cowardice is his to bear personally. Thanks for the fish Mr. Obama. 

Which is odd, because Allahpundit at Hotair suggests the President is a liar precisely because the brief effectively is the full-throated defense of the equal protection of same-sex marriage rights that Wheeler was looking for.

The news also isn’t that O’s revealing himself once again to have been a liar on this issue. When he ran in 2008, he pretended to be against gay marriage to parry Republican claims that he was a devout liberal rather than the centrist “post-partisan pragmatist” his campaign touted him as. He finally dropped the facade last year — it’s politically safe now to support gay marriage, even in the GOP (sort of) — but he’s continued to insist that this issue should be left to the states because … I’m not sure why. Literally no one believes he sincerely feels that way, and since he’d already taken the plunge by endorsing legal gay marriage, he had little to gain politically from his phony federalism. The best I can do by way of a theory is to guess that O, instinctively, likes to posture as a “moderate” even when he’s pushing reliably liberal positions. (E.g., “the balanced approach.”) It’s good for his brand as the “reasonable” adult in the room in Washington, a vestigial version of the pragmatic independence he feigned in summer ’08. Plus, I suppose he might have thought that posing as a federalist on SSM would cushion the blow for opponents once he revealed his support for legalization. It’s not as big of a deal to find out that the president thinks gays should be allowed to marry if he’s qualifying that by saying you should get decide to your home state’s rules. But that was nonsense, as the DOJ’s brief confirms, and anyone who didn’t see through it instantly is a fool.

But Greg Sargent believes the goal is step 13 there, and that the argument that the DoJ gives means 9-13 must be implied (and basically says "look, the time is right to do this.")  I agree with this analysis:

Because Supreme Court justices give weight to the opinion of solicitors general, this makes it more likely — though it certainly doesn’t assure this — that the Court will adopt an equally sweeping ruling. It sets forth a legal view that comports with Obama’s view that “the love we commit to one another” should be equal before the law. It sends a strong signal that the administration believes the culture is ready for full equality for gay and lesbian Americans. If the Court responds in kind, it will give gay advocates a powerful weapon to challenge other state laws around the country banning gay marriage, and they’d likely be toppled as unconstitutional — one by one. This could truly help put this persistent relic of legalized discrimination on the road to extinction.

Now the question is again, will SCOTUS get all the way to 13, or stop at 8?  If it does get to 13, then as Greg mentions, the precedent means that same-sex marriage bans will be struck down time and time again as states simply can't come up with any good legal reason to ban it.

That would leave a huge vacuum across the country, which you could then make the argument that the vacuum had to be filled with a national legalized same-sex marriage law.

We'll get there.  The question is how long it will take.