- The Washington Times
Thursday, February 28, 2013

Completing what President Obama called his “evolution” on the question of gay marriage, the administration late Thursday called on the Supreme Court to strike down California’s voter-passed initiative invalidating same-sex marriages.

Supporters and opponents of same-sex marriage will be poring over the administration’s brief in the coming days as the high court plans two days of oral arguments starting March 26 on the constitutionality of California’s Proposition 8 and the 1996 Defense of Marriage Act (DOMA), which defined marriage for federal purposes as only between a man and woman.

In the new brief, the Justice Department argues that the ban on gay marriage violated same-sex couples’ constitutional guarantee to equal protection under the law. But the brief focused on the California case and stopped short of calling for a nationwide guarantee that same-sex couples have a right to marry.

“The government seeks to vindicate the defining constitutional ideal of equal treatment under the law,” Attorney General Eric H. Holder Jr. said in a statement Thursday evening. “Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination.”

The Obama administration was not required to file a brief in Hollingsworth v. Perry, the case that challenges Proposition 8. But gay-rights supporters had been urging the president to take a stand. Mr. Obama opposed Proposition 8 as a presidential candidate in 2008 but refrained from endorsing gay marriage at the time. The Obama administration recently filed a brief asking the high court to strike down DOMA as well.

Both sides have filed dozens of legal briefs in recent weeks advising the Supreme Court on the legal issues around DOMA and Proposition 8, with conservative and religious groups urging the justices to let both stand.

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Tony Perkins, president of Family Research Council, said the administration’s stand against Proposition 8 amounts to a “flip-flop,” since Mr. Obama in May said gay marriage was “an issue that is going to be worked out at the local level.”

While nine states and the District permit gay marriage, at least 38 states prohibit same-sex marriage either through state law or constitutional amendment, according to the Human Rights Campaign. In dozens of states, the concept of gay marriage has been rejected at the ballot box, although such measures have passed recently in Maryland and a few other states.

The Supreme Court is set to hear the Hollingsworth case, as well as Windsor v. United States of America, which seeks to strike down DOMA.

Among those calling for the preservation of DOMA and Proposition 8 were international jurists, 20 state attorneys general, and advocates for constitutional law, religious liberties and traditional values.

Ten sitting Republican senators, including Orrin G. Hatch of Utah, who helmed the Senate Judiciary Committee that wrote DOMA, also argued that the federal law is constitutional and the opposition to the law by the Obama administration Justice Department should not factor into the decision.

If the Justice Department “believed that there was an inadequate federal interest to justify DOMA, the time to speak was in 1996, when Congress gave careful consideration to the need for DOMA,” Mr. Hatch and the other Republican senators noted in their brief.

On March 26, the first day the high court hears oral arguments in the cases, traditional-values groups, including the National Organization for Marriage, the Coalition of African American Pastors and the Family Research Council, are holding a “March for Marriage” in Washington in support of DOMA and Proposition 8.

On Thursday, gay-rights groups, backed by more than 100 Republicans and leaders of labor, religion and business interests, filed their own legal briefs to the Supreme Court.

At a news conference sponsored by the Respect for Marriage Coalition, former Rep. Patrick Murphy, Pennsylvania Democrat, said DOMA “hurts our military readiness because it splits military families.”

Gay and straight military members are treated differently under DOMA in terms of health benefits, housing and survivors’ benefits, even if they are legally married, said Mr. Murphy, who worked to repeal the “don’t ask, don’t tell” policy on gays serving openly in the military.

“It’s very simple — either you believe in equality or you don’t,” the Army veteran said.

DOMA forces businesses to be “instruments of discrimination” in their benefits plans, added Michael Paese, a government affairs executive at the global banking giant Goldman Sachs.

Among those signing the briefs: former Republican Govs. Jon Huntsman Jr., Christine Todd Whitman and William F. Weld, and Republican Reps. Ileana Ros-Lehtinen of Florida and Richard L. Hanna of New York. Ken Mehlman, the openly gay former chairman of the Republican National Committee, is a key promoter of the Respect for Marriage Coalition.

Former Rep. Jim Kolbe, Arizona Republican, who is openly gay, told the Thursday news conference that his partner, who is from Panama, has run into difficulty coming to the United States because of the federal law. The 11-term congressman recalled that when DOMA passed in 1996, gay marriage “seemed impossible.”

But “the times are changing, and I think that now we recognize that now is the time to strike,” Mr. Kolbe said.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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