WASHINGTON (Reuters) - In President Barack Obama’s latest act in support of gay rights, his administration will urge the U.S. Supreme Court to allow same-sex marriages to resume in California, an administration official said on Thursday.
Thursday is the deadline for the administration to file a friend-of-the-court brief in a case that is due to be argued on March 26 on whether California’s 2008 law, known as Proposition 8, is unlawful under the U.S. Constitution.
The official confirmed an NBC News report of the administration’s plans. It was not clear as yet what form the its legal argument would take.
The federal government is not a party in the case and it had been unclear whether the administration would file a brief. Gay rights activists were keen to have it intervene. The official’s confirmation meant that it would.
The court’s nine justices are under no obligation to pay close attention to the administration brief, or any of the dozens of other briefs filed by groups not a party to the litigation, including businesses, religious institutions and states.
The Obama administration already has taken a stand on gay rights in another case before the court, to be argued a day later on March 27. That case challenges the constitutionality of a central part of the 1996 federal Defense of Marriage Act (DOMA), which defines marriage under federal law as being between a man and a woman.
The administration has several options it can take in approaching the California case.
One, which would be the boldest and most controversial, would be to argue for a free-standing right to gay marriage in all 50 states, a position gay rights activists have urged officials to take.
That is the approach being taken by the lawyers representing gays and lesbians in the Proposition 8 case.
Alternatively, the administration could keep the focus on California by saying that the ban on gay marriage there is unlawful, without reference to bans in other states.
In what could be described as a compromise position, Verrilli could also choose to say states cannot give all the benefits of marriage to gays and lesbians without calling it marriage. That position, if adopted by the court, would affect not just California but also seven other states that offer benefits to same-sex couples but don’t allow marriage.
The seven states, in addition to California, that allow civil unions or domestic partnerships providing all or virtually all state-level spousal rights to same-sex couples but not the “marriage” designation are: Delaware, Hawaii, Illinois, New Jersey, Rhode Island, Nevada and Oregon.
In February 2011, Attorney General Eric Holder said the administration would no longer defend DOMA, the federal law, in that it violated the U.S. Constitution’s guarantee of equal protection under the law.
In the DOMA case, the administration has said courts should tread carefully when addressing laws that treat gays and lesbians differently from heterosexuals but has not said whether all bans on gay marriage are unconstitutional.
Nine states and the District of Columbia allow same-sex marriage. The nine are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.
The gay marriage movement has gained momentum since Proposition 8 was passed in 2008. In 2012, voters in Maryland, Maine and Washington all approved same-sex marriage.
Reporting by David Ingram and Lawrence Hurley; Editing by Howard Goller, Christopher Wilson and Eric Walsh