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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 The Department of Justice has already withdrawn its defense of DOMA, after determining the federal law was unconstitutional, which would make intervention on this case at the very least consistent.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.

And we can continue to fight for equality at the state level. Please contribue $3 to Oregon United for Marriage to help.

Originally posted to Joan McCarter on Thu Feb 21, 2013 at 10:25 AM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  agree (9+ / 0-)

    he will most likely weigh in on both, the so-called defense of marriage acts gets in the way of all of our returning war vets's ability to provide for their families.  

    "oh no, not four more years of hope and change?" Karl Christian Rove

    by anna shane on Thu Feb 21, 2013 at 10:28:57 AM PST

  •  Nina Totenberg reporting that federal government (15+ / 0-)

    will file a brief in Prop 8 case.


    Also, Carney just answered a question on this. Didnt really answer the question. I will have to look at the transcript later, but, in part, Carney said he has no announcements at this time. Can read that in a lot of different ways, I suppose.  

    •  As long ad they file that brief... (3+ / 0-)
      Recommended by:
      jj32, doraphasia, mindara

      I'll be quite happy.

    •  Good. I don't know if I can take much more (2+ / 0-)
      Recommended by:
      stevej, mindara


    •  It takes a week just to have the brief reviewed (0+ / 0-)

      It has already been written.  Perhaps multiple memos were written, or a memo or draft brief with multiple positions, but the decision has been made and the brief is in the final review stages if it is going to be produced in the required number of copies and filed next week.  That is just how it works.  

      They are evidently keeping quiet, but I guarantee it is either a done deal or some folks have done a great deal of ultimately futile work.

      My guess is that they at least argue that California cannot take away rights, and that a state that wants to extend marriage to gays may do so and is entitled to full faith and credit from the Feds and other states, but  I would be very surprised if they argue that no state can deny equal marriage rights because it denies equal protection, nor do I think the Court will go that far.

      The scientific uncertainty doesn't mean that climate change isn't actually happening.

      by Mimikatz on Thu Feb 21, 2013 at 02:44:26 PM PST

      [ Parent ]

  •  What an evolution. (3+ / 0-)
    Recommended by:
    doraphasia, Losty, mindara

    I'm glad to see the President is finally completing his. Now, the ball is (literally) in the Supreme Court.

  •  i'm glad for the news (0+ / 0-)

    but it would have been a hell of as lot easier to beat 8 in the first place had he not given the haters all of those choice sound bites.

    •  Now, I for one, believe he was always for marriage (1+ / 0-)
      Recommended by:
      wu ming

      equality, however, there was a strong cultural taboo in the African American community across the country (which the bastards in NOM and the Mormon Church fueled and inflamed intentionally during the prop 8 fight & the 2004 elections) and it was a very real possibility that by not being cognizent of that taboo, it could seriously cost him votes. I know how virulent and vocal some of the African American religious leaders and some legislator's were here in Maryland during the two times marriage equality was being debated here. We did pass it the second time, but barely and those against it forced it to be on November's ballot, sure that it would fail just like it had every other time it was put to a vote across the country. I thought we had a better than average chance of it passing before Obama "evolved" and I know there was a great deal of concern that if he endorsed it prior to the election, it might cost not only marriage equality in MD but the Presidential election. It was a legitimate concern. Until NOM's memo's regarding their strategy especially the part about using the AA community's antipathy and then Uncle Joe spoke from his heart, Pres. O spoke from his and the enormous support from so many respected civil rights leaders broke the dam. But it was far from a sure thing.

      "An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity" Dr. Martin Luther King, Jr..

      by mindara on Thu Feb 21, 2013 at 05:20:31 PM PST

      [ Parent ]

      •  i don't think it was a legitimate concern (1+ / 0-)
        Recommended by:

        and i find it very hard to believe that significant numbers of african american votes would have gone to mccain-palin over it, as a single issue. this line of argument completely discounts obama's ability to lead and persuade as well, which we have seen is formidable on matters of marriage equality, once he decided it was risk-free to weigh in on the "long arc of history" side of the debate.

        his comments against marriage equality at the last couple of months, combined with the craptastic no on 8 campaign (which deserves the lion's share of the blame IMO) that completely wrote off CA african americans, latinos, and inland californian voters as utterly hopeless (when in reality they were nowhere near as uniformly pro-8 as had been assumed or claimed erroneously since), helped to flip a close win to a close defeat.

        i'm very glad he's on the right side of things now, and hope that he'll help to undo the wrong that happened in my state on election day 2008 with this supreme court battle, but i won't give another cautious democratic politician a free pass when he was unwilling to help when it counted. i also have harsh words for feinstein for this very reason, i am not singling out obama by any means.

  •  Tip'd, Rec'd & Tweeted (2+ / 0-)
    Recommended by:
    Forest Deva, roycej

    "I like paying taxes...with them, I buy Civilization" -- me

    by Angie in WA State on Thu Feb 21, 2013 at 01:07:55 PM PST

  •  They've already decided what they're going to do (0+ / 0-)

    they will not announce whether they'll file a brief until they've largely written it and so know what it's going to say.  It's better from the admin's perspective to have the arguments down on paper first, rather than commit to file and put in the arguments later, with a larger possible risk of an unintended consequence that way.

    Difficult, difficult, lemon difficult.

    by Loge on Thu Feb 21, 2013 at 02:04:35 PM PST

  •  When will the court hear the case? (0+ / 0-)

    "Religion is what keeps the poor from murdering the rich."--Napoleon

    by Diana in NoVa on Thu Feb 21, 2013 at 02:06:54 PM PST

  •  Ok, yes I am a lawyer (1+ / 0-)
    Recommended by:

    but the complexities of the constitutionality of DOMA are beyond my expertise.  For more brilliant folks than my obvious brilliance here's my question:

    Is an appeal on DOMA justiciable if the Justice Department refuses to defend?  I know the Republicans have spent zillions of dollars to hire counsel, but one 1/2 of one branch should not have standing on this appeal.

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Thu Feb 21, 2013 at 02:10:30 PM PST

    •  That's one of the questions the SC has to (1+ / 0-)
      Recommended by:

      answer.  Who knows what they'll do...  It's waaay to complicated for me.  I hated Civ Pro.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Thu Feb 21, 2013 at 02:38:04 PM PST

      [ Parent ]

  •  Every day / It's a-getting closer/ (1+ / 0-)
    Recommended by:

    Going faster/Than a rollercoaster!  

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Thu Feb 21, 2013 at 02:19:33 PM PST

  •  Phew! Good job Obama evolved in time n/t (0+ / 0-)
  •  The biggest change is Tax code related (2+ / 0-)
    Recommended by:
    Losty, wayoutinthestix

    Right now, the issue with debating states incentives has real impacts on the equal protection clause as related to contracts formed in a state being valid elsewhere.

    However, the next real question here is a revision of tax code to allow those newly-minted gay marriages to file taxes in a way that is beneficial to them as a unit.

    Gandhi's Seven Sins: Wealth without work; Pleasure without conscience; Knowledge without character; Commerce without morality; Science without humanity; Worship without sacrifice; Politics without principle

    by Chris Reeves on Thu Feb 21, 2013 at 02:24:25 PM PST

  •  Life, Liberty, and the Pursuit of Happiness (1+ / 0-)
    Recommended by:

    To some, this means owning a small arsenal.  To others, it simply means being able to marry the person that they love.

    Everyone is crying out for peace; no one's crying out for justice...

    by mojave mike on Thu Feb 21, 2013 at 03:17:52 PM PST

  •  I'm seeing a bumper sticker (0+ / 0-)

    with that graphic at the top of this diary and the words: What difference does it really make?

    When lots of people show up to vote, Democrats tend to win.

    by Audri on Thu Feb 21, 2013 at 04:07:59 PM PST

  •  Leading from behind... (0+ / 0-)

    The prez shouldn't dilly-dally, or he might find himself "leading" behind Joe Biden again.

    "The highest patriotism is not a blind acceptance of official policy, but a love of one's country deep enough to call her to a higher plain." --George McGovern

    by Progressive Pride on Thu Feb 21, 2013 at 04:35:30 PM PST

  •  The House Republicans have allocated (0+ / 0-)

    $3 million or more to defend DOMA. I hope the DOJ/POTUS files an amicus curiae in the Prop 8 case.

    I really hope Anthony Kennedy is on our side. I know Scalia has said hateful things about LGBT rights and I don't trust Alito or Thomas.

    It would be nice if SCOTUS says that states have to recognize marriages from other states, per the full-faith-and-credit clause, but that might be too much to ask of them.

    “If you misspell some words, it’s not plagiarism.” – Some Writer

    by Dbug on Thu Feb 21, 2013 at 07:38:48 PM PST

    •  Not going to happen this time (1+ / 0-)
      Recommended by:

      Interstate recognition is covered by Section 2 of DOMA, and it's only Section 3 that's under appeal (Section 1 is simply legal metadata).

      Writing in all lower-case letters should be a capital offense

      by ebohlman on Thu Feb 21, 2013 at 10:09:10 PM PST

      [ Parent ]

  •  Nitpicks (0+ / 0-)
    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.
    I don't think filing an amicus brief really constitutes intervention. Those are two different concepts.

    Then, from the quoted AP article:

    The administration could also file a narrower brief that would ask the court to issue a decision applying only to California.
    I'm thinking of posting a diary of my own on this point, but the "narrow ruling for California" route that has been widely discussed is actually neither narrow nor applying only to California. That potential outcome is not the full-blown Gay Marriage Is Legal Nationwide outcome that we advocates for equality would like, but it would still be far broader and more positive than a lot of those advocates realize.

    The Ninth Circuit opinion in the Prop 8 case establishes a "no take-backs" rule that is in fact a big freakin' deal; it's a rule that applies to California only at this particular moment, because California happens to be the only state in which gay marriage rights were awarded and then subsequently taken away. A Supreme Court decision along the same lines would make the "no take-backs" rule national.  As a result, every state in which marriage equality has been realized (or will in the near future be realized—Illinois? Minnesota? Oregon?) via legislation or court action would stand to benefit from a so-called "California only" Supreme Court decision. Most prominently, such a decision would make a huge and immediate difference in Iowa.

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