President Obama is reportedly considering urging the Supreme Court to overturn Proposition 8, California’s ban on gay marriage, by filing a “friend of the court” brief. Though he’d better make up his mind soon as the administration only has until February 28 to do so.
An administration brief alone is unlikely to sway the Justices but the federal government’s opinion does carry weight with the court.
A final decision on whether to file a brief has not been made, a senior administration official said. Solicitor General Donald Verrilli is consulting with the White House on the matter, said the official, speaking only on condition of anonymity because the official was not authorized to address the private deliberations publicly.
While the Justice Department would formally make the filing, the president himself is almost certain to make the ultimate decision on whether to file.
Obama opposed Prop 8 during his 2008 run for president, though he didn’t outright support gay marriage until the run-up to his second term. Still, he conceded that marriage was not a federal issue but one best left up to the states.
Some, however, see the President’s inaugural address during which he called for gay rights as a signal that he’s willing to make a federal case out of it after all. Administration officials deny that Obama was making any legal foreshadowing and was simply restating his personal beliefs.
Gay marriage advocates are calling for the White House to file the brief and ask the Justices to not only rule California’s ban illegal, but all state bans illegal. The administration could file a narrower brief, asking for a decision that applies only to California or choose not to intervene at all.
Nearly two dozen states have filed briefs of their own with the Court seeking to uphold California’s ban, arguing that states should retain the right to define marriage.
The Supreme Court will take up the Prop 8 case on March 26 and then the case against the Defense of Marriage Act the following day.