By Brittny Drye
The language of President Obama’s amicus brief for Prop 8 has been released, and it’s quite the long-term strategy.
Though it didn’t outright insist that the Supreme Court declare marriage equality a constitutional right, under the President’s argument over the unconstitutionality of Prop 8, any state with a ban would fail the test. (Think of those 29 currently holding same-sex marriage bans, in addition to California.)
It’s pretty genius on the President’s end.
According to the New Yorker, Theodore Boutrous, one of the lead attorneys in the small group of legal luminaries representing the Proposition 8 plaintiffs (which also includes David Boies and Ted Olson), said on a conference call for reporters that they were “extremely pleased” that the government had taken a strong stand for marriage. He added, with respect to other anti-gay marriage bans, “I don’t see any way these laws could survive” under the legal test urged by the Justice Department in its brief.
It also touches upon domestic partnerships and civil unions, stating that they are still discriminatory:
[California] provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.
The language of this brief, if used by the SCOTUS, ensures that the bans from other states will fall if fought, a crucial first step that is necessary for nationwide equality. No war can be won with one battle, and in endorsing the unconstitutionality of all bans, the President is helping us to start winning those state-by-state fights.
According to SCOTUSblog.com, it also introduces the President’s “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.
For the full brief, click here.
