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In Proposition 8 case, the federal government weighs in: In Plain English

Today is the deadline to file amicus, or “friend of the court,” briefs in Hollingsworth v. Perry, which is scheduled for oral argument on March 26.  In that case, the Court will consider a challenge to the constitutionality of California’s Proposition 8, which amended that state’s constitution to limit “marriage” to unions between a man and a woman.  (I discussed the issues in Hollingsworth in Plain English late last year.)  At the Supreme Court and in other courts, amicus briefs are filed by individuals, entities, or groups that are not directly involved in a particular case, but nonetheless believe that they have an interest in it and want to make sure that the Court considers their point of view.

Because Hollingsworth is a case about the constitutionality of a state law, so far the United States hasn’t gotten involved in it.  But in a parallel case at the Court, the federal government is refusing to defend the constitutionality of a federal law which refuses to recognize same-sex marriages for purposes of things like federal taxes, Social Security benefits, and immigration; that case, United States v. Windsor, will be argued on March 27, the day after Hollingsworth.  (This is not a coincidence.)  And with the President’s remarks in his inaugural address contending that the country’s “journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” the question for many Court watchers shifted from whether the federal government would file an amicus brief supporting the challengers to Proposition 8 to what such a brief might say. 

Now we know.  In the brief that it filed tonight, the federal government urged the Court to declare Proposition 8 unconstitutional, but it did not go as far as supporters of same-sex marriage would have liked and argue that all same-sex couples, throughout the United States, should necessarily have the right to marry.  That question, it told the Court, could be decided later.  Instead, it wrote, when a state such as California allows committed same-sex couples to have virtually all of the rights and benefits of marriage through laws allowing civil unions or domestic partnerships, but doesn’t allow those couples to get married, it is treating the same-sex couples differently because of their sexual orientation.  Because that different treatment, the government explains, makes no sense, it violates the Constitution’s requirement that everyone will be treated equally.  Moreover, the government observed, “California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8” — that is, promoting the conception and rearing of children.

If the Court were to agree with the federal government, that would be enough to decide the case in the challengers’ favor and rule that Proposition 8 cannot stand.  The Court would not need to decide (as the trial court did in the case) whether there is a broad constitutional right for same-sex couples to get married.  And its ruling wouldn’t have any immediate effect beyond the eight states – in addition to California, Rhode Island, New Jersey, Delaware, Oregon, Nevada, Hawaii, and Illinois – that currently have such civil unions and domestic partnerships.  However, the Court’s reasoning might then lay the groundwork for it to strike down other states’ laws banning same-sex marriage, even when the states do not offer a civil union for same-sex couples.   But that might take a while, by which point the country and the Court might be more ready to do so – which may well have been the Obama administration’s goal all along.

Recommended Citation: Amy Howe, In Proposition 8 case, the federal government weighs in: In Plain English, SCOTUSblog (Feb. 28, 2013, 6:26 PM),