Although the U.S. Supreme Court appeared extremely divided this
morning over the legality of California’s ban on gay marriage, the
justices did exhibit widespread agreement on one point: None of
them seemed to find the Obama administration’s position on Prop. 8
to be very convincing.
In the brief submitted earlier this month, the Obama
administration called for the nullification of the gay marriage
bans now in place in California and the seven other states that
forbid gay marriage while allowing civil unions. According to the
government, this differential treatment is an unconstitutional
deprivation of equal protection. In other words, it’s
unconstitutional for a state to recognize civil unions while not
recognizing same-sex marriage. The federal government took no
position on those states that offer neither civil unions nor gay
marriage.
Unfortunately for the president, that argument appeared to find
little traction during this morning’s oral arguments, as evinced by
these comments made by the justices in response to the Obama
administration’s position:
Justice Ginsburg: “So a State that has made considerable
progress has to go all the way, but at least the Government's
position is, if it has...done absolutely nothing at all, then...it
can do -- do as it will.”
Justice Breyer: “A State that does nothing hurts them much more,
and yet your brief seems to say it's more likely to be justified
under the Constitution. I'd like to know with some specificity how
that could be.”
Justice Sotomayor: “General [Verrilli], there is an irony in
that, which is the States that do more have less rights.”
Chief Justice Roberts: “You saying it's got to happen right now
in California, but you don't even have a position about whether
it's required in the rest of the country.”
Read more about this morning's Prop. 8 arguments
here. Read Reason's coverage of Prop. 8 here.
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