WASHINGTON — The Obama administration urged the Supreme Court on Thursday to strike down California’s ban on same-sex marriage as unconstitutional, staking out a legal theory that would forbid states from banning same-sex marriage if it were adopted by the court.
In an amicus brief in Hollingsworth v. Perry, the administration particularly said those states which allow civil unions but not same-sex marriages — Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island — were violating the 14th Amendment’s right to equal protection.
“The designation of marriage,” wrote Solicitor General Donald Verrilli Jr., “confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”
The Supreme Court is set to hear Hollingsworth v. Perry in March and is expected to decide in late June. The case concerns California’s Proposition 8, the 2008 ballot initiative that amended the state constitution to ban same-sex marriage.
Attorney General Eric Holder said in a statement that the Justice Department weighed in to “vindicate the defining constitutional ideal” of equal treatment under the law.
“Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination,” Holder said. “The issues before the Supreme Court in this case and the Defense of Marriage Act case are not just important to the tens of thousands Americans who are being denied equal benefits and rights under our laws, but to our Nation as a whole.”
The Obama administration also offered the Supreme Court a more narrow option, suggesting it could “resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.”
Verrilli wrote in the DOJ’s amicus brief that states’ rights were not the issue in the Prop 8. case. “Promoting democratic self-governance and accountability is a laudable governmental interest, but it is not one that can justify a law that would otherwise violate the Constitution,” he said.
And he pointed again to the idea of equal protection: “Prejudice may not, however, be the basis for differential treatment under the law.”
Former George W. Bush administration Solicitor General Ted Olson, one of the leaders of the case against Prop. 8, told reporters last week his team had lobbied the Justice Department to intervene.
Earlier on Thursday, 13 states as well as the District of Columbia filed a friend of the court brief stating that bans on same-sex marriage are unconstitutional. Massachusetts Attorney General Martha Coakley lead the briefing, which included four states that do not currently allow gay couples to wed. The amicus brief stated that denying gays and lesbians “the opportunity to wed the partner of their choosing does not advance any legitimate governmental interest.”
In 2011, the Obama administration stopped defending the Defense of Marriage Act (DOMA), the 1996 law that bans the federal government from recognizing same-sex marriages. DOMA is also set to go before the Supreme Court in late March.
Just over a year ago, Obama was officially still “evolving” on the issue of gay marriage. He finally said last May that he personally believed that gay and lesbian couples should be able to get married, but hasn’t said whether he believes same-sex marriage bans at the state level are constitutional. He has previously said the issue should be left up to the states.
Read the Justice Department’s full brief below: