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Obama administration calls on Supreme Court to strike down Prop. 8

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The Obama administration called on the Supreme Court to strike down Proposition 8 in a brief filed today, declaring the California ban on same-sex marriage unconstitutional.

Solicitor General Donald Verrilli wrote on behalf of the Obama administration in the brief that California’s ban on same-sex marriage violates the 14th Amendment’s guarantee of equal protection.

“Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection,” the brief reads, adding that “heightened scrutiny” should be applied in the case because of the history of discrimination faced by gays and lesbians.

Although the brief was not a sweeping call for the high court to strike down same-sex marriage bans across the nation, which is not an issue before the court, the arguments made by the administration in the brief against California’s ban could be applied in other states.

“I think the solicitor general has left open and charted a course that if followed in other states would require those laws to be struck down too,” American Foundation for Equal Rights (AFER) attorney Ted Boutrous said of the arguments made in the brief during a conference call with reporters.

“This is really the last group in America who is being discriminated against because of their status,” Boutrous added. “This is a really important day in our nation’s history where the United States government has said in a brief in the Supreme Court basically, this discrimination cannot be tolerated.” 

Taking issue with many of the arguments made by proponents of Proposition 8, which was approved by California voters in 2008 and banned same-sex marriage after that right was already granted to gay couples, the brief states that “reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles.”

California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing—petitioners’ central claimed justification for the initiative—but instead on impermissible prejudice.

“Prejudice may not, however, be the basis for differential treatment under the law,” the brief concludes.

The filing today was one of dozens of briefs filed today by various groups and businesses calling on the high court to strike down Proposition 8 and comes on the final day the court is accepting amicus curiae briefs. But today’s brief was also a landmark move on the part of the Obama administration and another step in the president’s long evolution on same-sex marriage. The filing comes after weeks of lobbying by plaintiffs in the case, who have urged the president to weigh in and insisted a brief from the administration would aid their cause and fuel the political climate that can affect the opinions of justices seeking to be on the right side of history.

While Obama made history in May 2012 as the first sitting president to endorse same-sex marriage and has slammed the 1996 Defense of Marriage Act as unconstitutional, he had not commented on the Proposition 8 case. Since the Supreme Court announced in December they would hear arguments on the case, the White House has refused to comment on whether the administration would weigh in. As recently as this afternoon White House press secretary Jay Carney would not say if the administration would weigh in.

“In our filing today in Hollingsworth v. Perry, the government seeks to vindicate the defining constitutional ideal of equal treatment under the law,” Attorney General Eric Holder said in a statement after the filing. “Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”

The brief makes many of the arguments attorneys for AFER, led by Ted Olson and David Boies, have made over the years as the case has been litigated in lower courts. Adam Umhoefer, executive director of AFER, described the brief as “unprecedented.”

“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,” Umhoefer said in a statement. “It is an unprecedented call to action by our Government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law.”

According to Human Rights Campaign President Chad Griffin, who cofounded AFER and recruited Olson and Boies to the lead the legal fight against Proposition 8 in 2009, today’s filing was reflective of the central argument of their case: that the Constitution guarantees all Americans equal protection.

“It is enormously gratifying to know that today, that the President and U.S. Government are standing with us against marriage discrimination,” Griffin said.

Oral arguments are scheduled to begin before the Supreme Court on March 26 with a ruling expected in June.

[Photo: Barack Obama, Eric Holder and Joe Biden (Official White House photo by Pete Souza).]

Read the full brief here:

Obama Administration Prop 8 Brief 

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Obama administration calls on Supreme Court to strike down DOMA

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The Obama administration urged the Supreme Court to strike down the Defense of Marriage Act in a brief filed Friday, declaring the 1996 federal law to be unconstitutional.

Arguing that Section 3 of DOMA, which forbids federal recognition of same-sex marriage, violates the Constitution, Solicitor General Donald Verrilli writes that DOMA also deserves heightened scrutiny because of the history of discrimination faced by gays and lesbians.

“Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection,” the brief reads. “The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”

On the issue of heightened scrutiny, the brief states that “gay and lesbian people have long suffered discrimination in employment, immigration, criminal violence, child custody, police enforcement, voter referenda, and other contexts.”

[G]ay and lesbian people are a minority group with limited political power. Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action.

The brief also takes issue with arguments advanced by the Republican-controlled House Bipartisan Legal Advisory Group (BLAG), which has been defending DOMA in federal court since the Obama administration stopped doing so in February 2011, including its argument that this is an issue that should not be decided by the courts.

BLAG makes an appeal to this Court to allow the democratic process to run its course. That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection. The Constitution therefore requires that Section 3 be invalidated.

Moreover, the brief states that arguments made by BLAG that DOMA protects the institution of marriage and its perceived purpose — procreation — are flawed. 

“Even apart from the expert consensus that children raised by gay and lesbian parents are as likely to be well adjusted as children raised by heterosexual parents, Section 3 does nothing to promote responsible opposite-sex parenting or to prevent irresponsible same-sex parenting,” the brief reads. “Denying federal benefits to married same-sex couples creates no additional incentive for heterosexual couples to marry, procreate, or raise children together; nor does it disturb any state-conferred parental rights for same-sex couples.”

The brief comes in the case of United States v. Windsor, which surrounds Edith Windsor, who has been challenging DOMA since 2010, following the death of her wife, Thea Spyer. Windsor is suing to recoup about $363,000, the federal estate tax she was forced to pay on her “inheritance” from Spyer. The federal government does not tax wealth that passes to a surviving heterosexual spouse. Because of DOMA, however, the federal government has refused to recognize Windsor and Spyer’s marriage. According to the American Civil Liberties Union, which is assisting Windsor in her suit, payment of the federal estate tax is one of the most damaging impacts of DOMA. 

Living most of their lives in New York City’s Greenwich Village, Windsor and Spyer were engaged to marry in 1967, and finally did so with a Canadian wedding license in May 2007. Nevertheless, Windsor’s lawyers point out that DOMA requires the government to view the couple as legal strangers. 

The brief was one of two filed by the Department of Justice today. The other related to the administration’s right to pursue an appeal. BLAG also filed a brief challenging the government’s right to appeal and lawyers for Windsor filed a brief urging the Supreme Court to rule in the case. Oral arguments are scheduled to begin before the high court on March 27 with a ruling expected in June.

[Photo: Supreme Court (Courtesy of Matt Wade/Wikimedia Commons).]

Read the full brief here:

US Merits Brief Windsor

  

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