March 6, 2013
This piece is part of a three-part series examining the Obama administration’s Supreme Court brief arguing that California’s Proposition 8 violates the U.S. Constitution’s equal protection provisions. You can read Part 2 here and Part 3 here.
By Jacob Combs
Last Thursday, Solicitor General Donald Verrilli, Jr.—writing on behalf of the Obama administration and reportedly at the direction of the president himself—filed a brief with the Supreme Court asserting that Proposition 8 violates the U.S. Constitution’s guarantee to equal protection under the law.
While Verrilli’s brief stopped short of a sweeping call for a constitutional right to marriage equality across the nation, the argument it does make is both judicious and full of dramatic implications. Tailored specifically to California, it presents a seemingly narrow argument that, in principle, could lead to the end of marriage bans across the country.
‘Particularly in those circumstances’: Verrilli (seemingly) opts for the narrow route
In order to lay the foundation of his constitutional argument against Prop 8, Solicitor General Verrilli begins his brief by emphasizing the broad legal protections that California continues to provide same-sex couples even after Proposition 8 took equal marriage away from them. “California law,” he writes, “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.” He then goes on to argue that it is because of these marriage-like statutory provisions that Prop 8 is so indefensible:
“Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest.”
The words ‘particularly in those circumstances’ are essential, and worth examining more closely. A few pages later, Verrilli uses a similar qualifier when discussing California’s parenting laws, which–again, despite Prop 8–recognize same-sex couples as equals to opposite-sex couples when it comes to parenting. “In that context,” he writes, “the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing.” Once again, in this direct challenge to one of the central justifications for Prop 8’s constitutionality, the words ‘in that context’ are important.
LGBT advocates have been pressuring President Obama to weigh in on the Prop 8 case ever since the Supreme Court agreed to consider the law, calling it a natural move for the first sitting president to endorse marriage equality and include calls for LGBT equality in an inaugural address. But there was always the question of how far Obama would go. Would he make a case specific to California, the only state that has extended marriage rights to same-sex couples and then withdrawn them by a popular vote? Or would he make a broader case for nationwide marriage equality and a fundamental right to equal marriage under the U.S. Constitution, as more than 100 Republican officials did in another brief filed last week?
California law and Prop 8’s equal protection violation
At first blush, Verrilli’s brief might seem to show Obama’s preference for the first approach: it asserts that the Supreme Court “can resolve [the Prop 8] case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships” (emphasis added). Even more importantly, it includes this powerful assessment of California’s views on the equality of same-sex and opposite-sex relationships:
“California has … recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death.”
In other words, the Solicitor General’s brief argues that the state of California, through its law and public policy, has concluded that same-sex and opposite-sex couples are equal in their relationships, equal in their ability to parent, and therefore should be equal under the law. To denote these two types of equivalent relationships differently as Prop 8 does, Verrilli argues, is a violation of equal protection.
The majority of Verrilli’s brief is devoted to demonstrating exactly why Proposition 8 runs afoul of equal protection when viewed in light of California’s treatment of same-sex couples. Proposition 8, he writes, does nothing to encourage ‘responsible procreation’–as its proponents argue–because “California’s extension of parental and other rights to gay and lesbian couples … undermines any contention that Proposition 8 furthers an interest in responsible child-rearing.”
Verrilli also argues that the proponents are incorrect in saying that Prop 8 was an attempt to proceed with caution on matters of social policy, noting that the law “amends the California Constitution and permanently bars the legislature from altering the definition of marriage.” Just as importantly, he undermines the argument that Proposition 8 returned the issue of marriage equality to the “will of the people,” noting that the U.S. Supreme Court has held that “[t]he sovereignty of the people is itself subject to … constitutional limitations.”
Going beyond the justifications proposed by the Prop 8 proponents’ in their legal defense of the law, Verrilli points out that the purposes put forward for the law’s passage during the 2008 election also fail to save it from being struck down. Verrilli disputes the idea that Prop 8 can be defended as an attempt to maintain a ‘traditional’ definition of marriage, quoting the Iowa Supreme Court’s unanimous decision legalizing marriage equality in that state, which held that “[w]hen a certain tradition is used as both the governmental objective and the classification to further that objective, the equal protection analysis is transformed into the circular question of whether the classification … maintain[s] the classification.” He also flatly rejects the canard that Prop 8 would keep children from being taught about marriage equality in school, pointing to the Ninth Circuit’s observation that “[b]oth before and after Proposition 8, schools have not been required to teach anything about same-sex marriage.”
By marshaling the California-specific facts of Prop 8’s history, Verrilli makes a compelling case that “Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing … but instead of impermissible prejudice.” With this argument alone, the Supreme Court could invalidate Prop 8 in a narrow decision that would do nothing to affect the marriage laws of any other state. It goes without saying that Verrilli and Obama could have stopped their legal brief at this point. But in fact, the administration’s brief goes one very large step further.
Tomorrow, in Part 2 of this series, I’ll examine the more expansive ‘eight-state solution’ implied by one of the arguments in the Obama administration’s Supreme Court brief.