Obama's Gay Marriage Position Falls Flat at Supreme Court

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."

Read more about this morning's Prop. 8 arguments here. Read Reason's coverage of Prop. 8 here.

Comments

[Shine on, Nikki Diamond]

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."

Because centuries of mildly to severely retarded jurisprudence couldn't possibly lead to illogical, even retarded, outcomes?

[EDG reppin' LBC]

How can the Supreme Court treat Obama this badly? He is the PRESIDENT dammit!!!

[some guy]

The president's stance is lame, at best. It's the stance a candidate takes when campaigning in a general election. It's ideologically moderate, aimed more at limiting state power than supporting individuals.

[16th amendment]

He's got tricks up his sleeve. He must have bullied Roberts into the Obamacare decision. Either personal threats or a court-packing scheme. Then again, maybe Roberts wants to go down in history like a reformer.

[16th amendment]

This is a state's rights issue, as is abortion. I support gay marriage. CA can just put a prop 9 on the ballot next year to allow gay marriage, and seeing that it has passed in several other states that are more conservative than CA, it would surely pass in CA.

[wareagle]

why "surely?" Black churches and the Mormons mobilized there and in several other Blue states. Why doesn't CA show some legislative balls and handle the issue in the Assembly instead of farming out again?

[Calidissident]

I don't think Prop 8 would have passed here today. Gay marriage is more accepted as time passes

[16th amendment]

Plus they said lots of money came from the Mormon church in Utah. They've got to be broke by now, especially with all the new taxes (so people donate less to church).

[thom]

The black churches weren't able to overcome it in Maryland, because the NAACP and the mayor of Baltimore came out in favor of SSM. There's also an article floating around right now about how the Mormon money around this issue has dried up very quickly.

This issue has basically been settled. We're all just waiting for the politics to catch up.

[califernian]

"legislative balls"?!?! AHAHAHAHAHAHAHAHHAHA

[Eduard van Haalen]

Hypothesis: Obama didn't want to challenge SSM in any red states, so he crafted an argument which impacted blue states only. What are they going to do, vote Republican?

[yonemoto]

it's like some sort of sick inverse emancipation proclamation.

[SumpTump]

There is a dude that really seems to know whats going on. Wow.

http://www.MaxAnon.tk

[Death Rock and Skull]

Aside the point of whether or not gay marriage is constitutional, I am positive that Obama's position on it, whatever that may be, is flat out unconstitutional in its details.

[IceTrey]

First of all, it's same sex marriage, you don't have to be gay. Second, this is really all about state licensing. Third, I don't think the Federal government has the authority to force States to issue licenses. Fourth, the solution is to get government out of the marriage licensing business.

[Robert]

I agree that gov't should not license marriages. But that does nothing to resolve the question of whether somebody is married when the case is taken to court. Marriage is a question of fact. A dog license doesn't make an animal a dog.

[Thorbie]

This is what happens when you can't take a clear position on anything and instead are in a constant state of "evolution." There's got to be a point where Obama doesn't believe his own bullshit. Remember he was against gay marriage, then he was only "personally" for it, but believed it was a state issue (translation: he doesn't believe it's a constitutional right). Now he does think it's a constitutional right? No wonder his brief is so terribly unclear and logically confusing.

My view is that there should be a constitutional right to same-sex marriage, since marriage has been considered a fundamental right under the constitution in prior decisions. What makes straight marriage more fundamental than any other kind of marriage? If the court finds that persuasive, I can't see a ban on same-sex marriage passing strict scrutiny.