Obama calls for Supreme Court to strike down California's Prop 8... and Oregon's Measure 36

Kari Chisholm

Folks, this is big news. Late Thursday, the Obama Administration submitted its brief (pdf) to the Supreme Court in the Prop 8 case.

The question that Court watchers wanted answered was this: Would the Administration call for striking down Prop 8 on hyper-narrow grounds? Or would they call for striking down all bans on same-sex marriage nationwide?

As it turns out, the Obama Administration took a middle road. But it's a middle road that would strike down Oregon's Measure 36 alongside California's Prop 8.

NPR's Nina Totenberg explains:

While the brief uses expansive language about the right to marry, it does not urge the court to go as far as invalidating bans that exist in some 30 states. Instead, the brief asks the court to focus on the "particular circumstances presented by California law" rather than addressing the issue as it is presented in many other states.

California and seven other states currently grant gay couples all the rights that are granted to heterosexual couples, except the right to marry. Same-sex couples raise children with the same rights and responsibilities as heterosexual couples, become foster parents, can make medical decisions for a partner, etc. "California has therefore recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors' opposite-sex marriages," the brief says.

Nonetheless, as the brief puts it, Proposition 8 "forbids committed same-sex couples from solemnizing their union in marriage and instead relegates them to a legal status — domestic partnership — that is distinct from marriage but identical to it." Therefore, as the brief puts it, California denies same-sex couples the right guaranteed in the Constitution that all persons similarly situated be treated alike.

OK, so what about Oregon? Well, Oregon is one of those seven other states:

If the court were to agree with the administration's argument, seven other civil-union states would also see their laws fall. Those states are Hawaii, Delaware, Illinois, Nevada, New Jersey, Oregon and Rhode Island.

So, while the President's decision - and according to Totenberg, he made the final call himself - isn't as expansive as many of us would like; it would bring marriage equity to Oregon, if a majority on the Court agrees. And of course, we can expect that the Administration's brief is carefully calibrated to attempt to win over five votes, rather than tilting at windmills and losing.

The decision is expected by June.

By Kari Chisholm March 01, 2013