The content of a brief that the Obama administration filed on Friday, urging the Supreme Court to strike down Section 3 of the Defense of Marriage Act, raises suspicions that the Justice Department might soon be planning to embrace a federal constitutional right to same-sex marriage.
The Department of Justice brief asked the court to uphold a federal appeals court ruling that found Section 3 of the 1996 federal law, which keeps the federal government from recognizing same-sex couples legally married in states, to be unconstitutional.
In the brief, filed in United States v. Windsor, a case challenging Section 3 of DOMA, Solicitor General Donald Verrilli appears to have more in mind than just the scope of this case. "The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples," the brief said.
The Obama administration is reportedly considering filing a friend of the court brief on Proposition 8, the 2008 California law that banned gay marriage. Prop. 8 was mentioned also in Friday's brief in the DOMA case.
The federal government has until Feb. 28 to file a brief in the Prop. 8 case. The Supreme Court is scheduled to take it up on March 26, and can decide to uphold the ban, to reverse it in California alone, and could even prohibit states from banning gay marriage. Currently, each state has the right to decide its own marriage laws.
"There is nothing at all tentative about the government's embrace of gay equality in this [DOMA] brief," Politico quoted Richard Socarides, a gay rights advocate and White House adviser to President Bill Clinton, as saying. "And next week I think we will see the government urging the same standard of review be used to overturn Prop. 8, and with it, all anti-gay-marriage laws," he said. The brief, he added, clearly indicates that "they understand and now embrace its connection to the Prop. 8 case," he added.
"Gay and lesbian people are a minority group with limited political power," the Justice Department's brief states. "Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action."
If the federal government joins the Prop. 8 case, that would be a departure from President Obama's stance during the initial years of his first term, which is it is for the states to decide what they want. While Obama announced in February 2011 that his administration would no longer defend DOMA, the federal government had abstained from challenging it.
Nine states, and the District of Columbia, have legalized same-sex marriage, but the practice remains illegal in the majority of other states.
When the Republican-led House of Representatives filed its brief in the DOMA case last month, it said, "Gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history."
The House joined the case because of Obama's decision not to defend DOMA.
The case – oral arguments of which are scheduled for March 27 – deals with Edith Windsor, who was asked to pay $363,000 in property taxes after her same-sex partner, Thea Spyer, died in 2009. They married in Canada in 2007. While New York, their home state, recognized their same-sex marriage, the federal government did not.
Since the last year of his first term, Obama has increasingly advocated for gay rights.
During January's inaugural address, the president insisted that gays and lesbians should be "treated like anyone else under the law." "For if we are truly created equal, than surely the love we commit to one another must be equal as well," Obama told the nation at the U.S. Capitol, less than a year after he declared he is in favor of legally recognizing same-sex marriage last May.
After reports suggested the federal government is considering becoming party to the Prop. 8 case, Austin R. Nimocks, senior counsel at Alliance Defending Freedom, who is a co-counsel in the case, told The Christian Post in a phone interview that his group will hold off on commenting on such a brief until, or if, it is actually filed. However, he shared his hopes that the Supreme Court justices will not change the traditional definition of marriage.
"The wisest course of action is for the Supreme Court to allow the debate over marriage to continue in this country and not judicially impose same-sex marriage on Americans," Nimocks said.