Obama May Ask Supreme Court To Overturn California’s Ban On Gay Marriage

obamaPresident 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.

The Washington Post reports:

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.

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  • 7Thunders

    I don’t know if this is a good idea. I mean, some on the court are so anti Obama it might make them upset that the President is stepping on their playground.

  • sweetbrandigirl2004

    @7Thunders: I don’t think the president weighting in with his opinions is anymore of an encroachment on their playground then the “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.”

  • 2eo

    @sweetbrandigirl2004: Yeah, but Obama is a gay, black muslim.

  • doug105

    @2eo: You left out .
    From Kenya!

  • MikeE

    And yet more proof that the Supreme Court of the United States is NOT about “the law”. If things of this nature can sway its decisions, then they are most definitely not taking the neutrality of the law into consideration and are letting prejudice, bias and personal opinion guide them. So much for Justice being “blind”.

    The whole SCOTUS has to be overhauled.

  • jwrappaport


    Amicus briefs filed by the executive branch are not binding – they are merely persuasive. Here, the brief would and should carry some weight, as it would show the justices very tangible popular support behind gay rights and perhaps ease their minds about the “dangers” of foisting equality onto a bigoted country that doesn’t want it. Briefs of this kind are not unusual, and they present no legitimate danger of executive coercion in the judiciary.

    Go see the Supreme Court sometime in DC. Or perhaps read one of its rulings. I can assure you that, despite the fact that the law is a massively complicated, nuanced, and often indeterminate enterprise, the Court is most definitely about the law. Given your characterization of the Court, I think it is you who is not “about the law.” If you think law can be applied neutrally here or that the justices or any human being for that matter could adjudicate gay rights objectively, you are jousting at windmills.

  • jwrappaport

    @MikeE: Having said that, I agree that it should be overhauled. Term limits of 15 years would do that quite nicely, I think.

  • Callum

    An “amicus” brief by the President in favor of finding such marriage bans in violation of The Constitution would tend to counter the briefs filed by a number of anti-gay marriage states. Marriage laws should and could easily meet the commerce clause muster. Marriages sshould be governed by a United States of America policy, not an individual States policy.

  • WayDifferent

    Meanwhile, gays are being bashed and beaten into critical condition in his hometown in the sake of “equality” and “diversity” (oh, and a $).

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