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President Obama has one week to decide whether the Department of Justice will file a friend-of-the-court brief with the Supreme Court in California's gay marriage ban case. The White House has been lobbied by both sides in the case, but with President Obama's declaration in his inaugural address that "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law," opponents of the ban are more likely to sway him.
Seeking to capitalize on growing public support for gay marriage, advocates are calling on the administration to file a broad brief not only asking the court to declare California's ban unconstitutional but also urging the justices to make all state bans illegal.
"If they do make that argument and the court accepts it, the ramifications could be very sweeping," said Richard Socarides, an attorney and advocate.
The administration could also file a narrower brief that would ask the court to issue a decision applying only to California. Or it could decide not to weigh in on the case at all.
The Court will also hear arguments against the Defense of Marriage Act, the day after the Prop 8 arguments. The Department of Justice has already withdrawn its defense of DOMA, after determining the federal law was unconstitutional, which would make intervention on this case at the very least consistent.
President Obama is now committed to marriage equality and the Department of Justice has made a determination on federal law against a federal ban. There would be no inconsistency in the government filing this brief. President Obama can complete his evolution on the issue by helping to fight for it with the Supreme Court.