Obama's Prop 8 push: Will it matter?

By Laurel Schwartz ’15Politics Columnist

In an unexpected move on Feb. 28, the Obama administration submitted an amicus curiae (“friend of the court”) brief to the Supreme Court opposing Proposition 8 as unconstitutional.

Prop 8 is the widely-disputed statute that banned same-sex marriage in California. According to the brief, “California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8.”

The brief endorses what analysts are calling the “eight-state solution.” The “eight-state solution” asserts that if a state already recognizes for same-sex couples all the privileges and benefits of married couples they must make the next step and allow same-sex couples to marry. The argument here is that denying same-sex couples the right to marry when they have the same legal benefits as married couples violates the Constitution’s guarantee of legal equality.

While the brief did not go as far as declaring gay marriage a constitutional right, it did assert the right to equality for gay and lesbian individuals in the United States. This begs the question: “Is this brief still a victory for gay and lesbian couples if it does not declare their right to marry a constitutional right?” In this situation, I believe it is.

Obama—who advocated for equality for gay and lesbian individuals in his inaugural address—recognized that sometimes work needs to be done within the confines of the political system in order to make steps towards progress. Thus, he recognized that focusing directly on Prop 8 could have large, lasting impacts on the country.

If the Supreme Court accepts Obama’s reasoning and overturns Prop 8, any state constitutional amendment to ban same-sex marriage would fail the test of constitutionality. Furthermore, any state that already allows same-sex marriage would have the added security that the right would not ever be taken away. This also makes the declaration that the Obama administration is taking the necessary steps to work towards marriage equality.

While this brief could effect real change for people living in states that adhere to “the eight-state solution,” the ruling on Prop 8 may not impact states that do not recognize same-sex couples at all.

Considering that President Obama did not even openly endorse same-sex marriage until last May, this is certainly vast progress made very quickly and very strategically. While this may not be nearly enough for many Americans, it is certainly a step in the right direction.