It is, nonetheless, somewhat disappointing and perplexing. If the court accepted the president's argument, it would invalidate gay marriage bans only in a handful of states, leaving inequality the law of the land in more than 30 others.
The president's amicus brief is just one of many that have been filed on both sides of the issue, but it, like one signed by scores of prominent Republicans opposed to Proposition 8, could be more influential than most. The Supreme Court traditionally takes seriously the views expressed by the solicitor general — the president's lawyer in Supreme Court cases — and elements of this brief appear designed to appeal specifically to Justice
The Obama administration argues that same-sex marriage bans must be subjected to "heightened scrutiny" because they single out for unequal treatment a group of people who have historically been subject to prejudice. In order to be constitutional, then, such a law would have to advance a compelling public interest. This one, the administration brief says, does not.
The best evidence of that comes not from the administration brief, nor even from the one filed by the plaintiffs in this case. Rather, it is found in the bizarre gyrations the supporters of Proposition 8 make in order to find some plausible reason for treating gay couples differently. Stripping away all the language about how opposite-sex marriage is a long-standing tradition — surely not an excuse for discrimination under the law — the Proposition 8 backers' brief centers its argument on the notion that the state's only interest in marriage is to provide a stable environment for child-rearing.
The fact that millions of gay men and lesbians raise children is barely acknowledged, and the brief gives no consideration as to whether marriage might also provide them with more stable, nurturing homes. The closest it comes is through the assertion that marriage is of particular importance to opposite-sex couples because of their unique ability to produce unplanned pregnancies — the implication being, we suppose, that because gay couples must surmount the hurdles of adoption, in vitro fertilization or surrogacy, they are inherently more responsible parents. This might make a good argument for mandatory homosexuality, or for criminalizing extramarital sex, but it's hard to see how it leads to the conclusion that same-sex couples do not warrant the societal validation that marriage confers.
The Obama administration's brief succinctly makes that point: "Even assuming ... that the point of Proposition 8 was to account for accidental offspring by opposite-sex couples, its denial of the right to marry by same-sex couples does not substantially further that interest." Quite simply, the administration asserts, Proposition 8 violates the principle of equal protection under the law.
What's odd, then, is that the brief invites the justices to ignore the power of that argument and instead rule on narrower grounds that would only invalidate bans on gay marriage in California and seven other states that have domestic partnership laws that are the equivalent of marriage in everything but name. In so doing, it echoes the narrow appellate court ruling in this case and acts as something of a bridge between Mr. Obama's statements that he believes the issue should be left up to the states and his recent, more expansive language about equality.
That may be a politically convenient stance, but it isn't an intellectually consistent one. If it is unconstitutional to treat same-sex couples differently than opposite-sex couples in some states, it is unconstitutional to do so in all states. We hope the Supreme Court will recognize that fact and make a ruling that guarantees equality for all.