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Obama administration files Supreme Court brief challenging Prop 8’s constitutionality

The Solicitor General files a brief on behalf of the Obama administration with the Supreme Court arguing that Proposition 8 is unconstitutional.  “The United States has an interest in the Court’s resolution of [the question of Prop 8’s constitutionality],” the Solicitor General writes, “particularly in light of its participation in United States v. Windsor, No. 12-307 (cert. granted Dec. 7, 2012), now pending before the Court. The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes.”  The brief then goes on to outline why laws pertaining to gays and lesbians should be subject to heightened judicial scrutiny, making the same argument that the federal government presented to the Supreme Court in the Windsor DOMA challenge.

The administration’s argument focuses specifically on California’s legal treatment of same-sex couples, noting that “California law 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.”  With these specifics in mind, the Solicitor General writes, “the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.”

The Obama administration argues that Proposition 8 does not, as its proponents contend, advance any governmental interest in encouraging responsible procreation.  Nor does it ‘proceed with caution,’ going instead–in the Solicitor General’s words–to the “opposite extreme,” by “permanently amend[ing] the California Constitution to bar any legislative change to the definition of marriage.”

Significantly, the administration’s brief points out that “[s]even other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples.”  Although it does not explicitly argue this point, the brief’s logic could reasonably be extended to apply to those states as well, should the Court choose to do so.

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