By Richard Wolf and David Jackson, USA TODAY
WASHINGTON - The Obama administration will endorse same-sex marriage
Thursday by telling the Supreme Court that California should not be
permitted to ban gays and lesbians from tying the knot.
The highly anticipated legal brief was expected later in the day, just hours before the deadline, the Associated Press reported.
Justice Department is likely to argue that gay and lesbian couples have
the same right to marry as heterosexuals. It's not clear whether the
brief will apply to 37 other states that ban gay marriage or just to
The court filing will complete President Obama's
self-described evolution on gay marriage and puts his administration
squarely on the side of gay rights groups and the nine states where
same-sex marriage is legal.
The president opposed California's
ban, Proposition 8, during his 2008 campaign but refused to endorse gay
marriage. He made that endorsement during last year's campaign but said
the issue should be decided by the states.
Then, in evocative
language in this year's inaugural address, Obama equated gay rights to
past battles on behalf of women and African Americans by mentioning
Stonewall, the New York City bar that was the site of 1969's historic
gay rights riots.
"Our journey is not complete until our gay
brothers and sisters are treated like anyone else under the law," Obama
said. "For if we are truly created equal, then surely the love we commit
to one another must be equal as well."
The high court has
reserved two days in late March to consider the California ban on gay
marriage and the Defense of Marriage Act, which denies federal benefits
to legally married same-sex couples. Both have been declared
unconstitutional by lower courts, decisions which are being challenged
by gay-marriage opponents.
Proposition 8 was approved by
California voters in November 2008 to block a state Supreme Court
decision legalizing same-sex marriage. Ever since, gay couples have been
blocked from marrying in the nation's most populous state. A final
ruling overturning the ban would open the floodgates to thousands of new
same-sex marriages there.
What effect a court ruling striking
down Proposition 8 would have on other states is not clear. The justices
could rule narrowly, as a federal appeals court did, holding only that
voters cannot take away a right previously enjoyed, however briefly, by
Californians. But a more sweeping decision declaring marriage rights for
gays and lesbians would endanger all state bans.
The Defense of
Marriage Act (DOMA) was passed by Congress and signed by President
Clinton in 1996 as a response to a Hawaii Supreme Court ruling that
questioned the denial of a marriage license to a same-sex couple. The
federal law has blocked legally married couples from receiving federal
benefits in Connecticut, Iowa, Maine, Maryland, Massachusetts, New
Hampshire, New York, Vermont, Washington and the District of Columbia.
administration is leading the effort to overturn DOMA in the case of
Edith Windsor, an 83-year-old New York widow who was forced to pay
hundreds of thousands of dollars in estate taxes when her lesbian spouse
died in 2009. Had she been married to a man, she would have faced no
The new filing is more significant, however,
because the administration did not have to get involved at all. Two
same-sex couples are contesting Proposition 8 along with the state of
California, while organizations that promoted the 2008 voter initiative
are defending it.
In the Windsor case, the Justice Department's
brief argues that gays and lesbians have been subjected to a long
history of discrimination, and it refers specifically to the California
marriage ban as an example.
On the subject of states' rights vs.
the Constitution, its brief to the Supreme Court states: "Deference to
the democratic process must give way to the fundamental constitutional
command of equal treatment under law."
Polls have been shifting
toward approval of gay marriage. In a December USA TODAY survey, 53% of
Americans said same-sex couples deserve the same marriage rights as
heterosexual couples, up from 40% in 2009.
California's ban has
attracted 37 "friend of the court" briefs, mostly from conservative and
religious groups. Opponents of the ban have until today to file their
briefs, and until Friday in the Defense of Marriage Act case. They were
coming in from a variety of groups on the political left and right:
of major companies, including Apple, Cisco, Facebook, Levi Strauss,
Verizon and Xerox, argue in the California case that marriage equality
"is a business imperative." Others, including Amazon, Citigroup, Google
and Starbucks, say that DOMA forces them to discriminate against their
- More than 100 Republicans and conservatives
signed a brief organized by Ken Mehlman, former chairman of the
Republican National Committee and head of President George W. Bush's
2004 re-election campaign.
- A coalition of religious
organizations representing Episcopal, Lutheran, Methodist, Quaker,
Presbyterian and Jewish faiths endorsed what they called "civil"
marriage equality, which they said does not impinge on religious
- The liberal Constitutional Accountability Center joined
with the libertarian Cato Institute on a brief, arguing that marriage
cannot be denied "for invidious or arbitrary reasons," Cato's Ilya
- Two National Football League players - Brendon
Ayanbadejo of the Super Bowl champion Baltimore Ravens and Chris Kluwe
of the Minnesota Vikings - filed a brief because, they said, sports
figures can help shape public opinion and urge "societal progress."