Although the U.S. Supreme Court appeared extremely divided this morning over the legality of California’s ban on gay marriage, the justices did exhibit widespread agreement on one point: None of them seemed to find the Obama administration’s position on Prop. 8 to be very convincing.
In the brief submitted earlier this month, the Obama administration called for the nullification of the gay marriage bans now in place in California and the seven other states that forbid gay marriage while allowing civil unions. According to the government, this differential treatment is an unconstitutional deprivation of equal protection. In other words, it’s unconstitutional for a state to recognize civil unions while not recognizing same-sex marriage. The federal government took no position on those states that offer neither civil unions nor gay marriage.
Unfortunately for the president, that argument appeared to find little traction during this morning’s oral arguments, as evinced by these comments made by the justices in response to the Obama administration’s position:
Justice Ginsburg: “So a State that has made considerable progress has to go all the way, but at least the Government's position is, if it has...done absolutely nothing at all, then...it can do -- do as it will.”
Justice Breyer: “A State that does nothing hurts them much more, and yet your brief seems to say it's more likely to be justified under the Constitution. I'd like to know with some specificity how that could be.”
Justice Sotomayor: “General [Verrilli], there is an irony in that, which is the States that do more have less rights.”
Chief Justice Roberts: “You saying it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.”