President Obama’s winding path on same-sex marriage reached a major new milepost Friday when his administration told the Supreme Court that the Constitution does not allow states to prohibit gay couples from marrying.
The filing’s bold language — “these facially discriminatory laws impose concrete harms on same-sex couples and send the inescapable message that same-sex couples and their children are second-class families” — captures the enormous shift Obama has made since he first sought the presidency in 2007.
After endorsing same-sex marriage nearly two decades ago, and then rejecting that idea eight years later, Obama has made expanding LGBT rights a hallmark of his domestic policy agenda. Casting it as the next chapter of the civil rights movement, the president has used language to reframe the public debate over sexual orientation and gender identity and his executive authority to expand federal benefits and protections for these Americans.
But the president’s legal strategy has been more complicated. His administration announced in 2011 that it would not defend the constitutionality of the key section of the Defense of Marriage Act that excluded gay couples from federal marriage benefits. In a 5 to 4 decision in 2013, the Supreme Court agreed.
At the same time, the administration stopped short of asking the justices to strike down all state prohibitions on same-sex marriage. That is the question the court will decide this term, with oral arguments scheduled for April 28.
The government’s brief this time is unequivocal. It says that restrictions on gay marriage violate the Constitution’s guarantee of equal protection and, for the first time, calls on the court to recognize sexual orientation as a characteristic — like race or gender — that deserves special protection.
“In Loving v. Virginia, this court applied the ‘most rigid scrutiny’ under the Equal Protection Clause to invalidate state laws banning interracial marriage,” said the brief filed by Solicitor General Donald B. Verrilli Jr. “There is similarly no reason to water down the otherwise appropriate level of scrutiny here.”
The brief draws heavily on the court’s DOMA decision, U.S. v. Windsor. The reasoning of that decision has led courts across the country to strike state bans on gay marriage. But the U.S. Court of Appeals for the 6th Circuit disagreed and upheld restrictions in Michigan, Ohio, Kentucky and Tennessee. It is that decision the Supreme Court will review.
Since taking office, the president has repealed the U.S. military’s practice of “don’t ask, don’t tell,” which allowed for the expulsion of service members based on their sexual orientation; banned discrimination against LGBT Americans in the federal civilian workforce and among federal contractors; and has advanced the legal understanding that prohibitions on sex discrimination also apply to acts based on an individual’s gender identity.
White House senior adviser Valerie Jarrett, who has played a key role in shaping the administration’s approach to gay rights, said in an interview before the filing, “We fight discrimination in every way we can.”
“We are delighted with the fact that when the president took office, same-sex marriage was legal in two states, and it is now legal in 37 states and the District of Columbia,” she said.
Obama has consistently advocated for greater legal rights for same-sex couples, although he has changed his position on same-sex marriage at points in his career. As an Illinois state senate candidate, he endorsed the idea in a 1996 questionnaire with an LGBT Chicago newspaper, a comment his aides later said was written by a campaign aide and not representative of his views. While running for U.S. Senate in 2004, Obama said marriage should be between only a man and a woman.
By December 2010, the president said his opinion on the matter was “constantly evolving,” and in May 2012, days after Vice President Biden surprised the White House by declaring that he was “absolutely comfortable” with same-sex marriage, Obama publicly endorsed it as well.
Most of the president’s allies had suspected for years that he backed the concept of same-sex marriage but was hesitant to embrace it in public for fear of losing support among African Americans.
Obama told BuzzFeed in an interview last month that he had made a distinction between his personal feelings and policy position. “I always felt that same-sex couples should be able to enjoy the same rights, legally, as anybody else, and so it was frustrating to me not to, I think, be able to square that with what were a whole bunch of religious sensitivities out there.”
Both he and Michelle Obama used the phrase that everyone “should be able to marry the person they love” in their stump speeches, a line that former Obama speechwriter Jon Favreau said “often got some of the biggest applause” on the 2012 campaign trail.
On a more practical level, the administration has expanded benefits and safeguards for members of the gay, lesbian, bisexual and transgender community. Regardless of where they live, legally married same-sex spouses are now recognized for most federal and military benefits and can receive health-care coverage under the Affordable Care Act.
Obama has appointed a record number of LGBT Americans to key senior administration posts, has nominated eight openly gay individuals to serve as U.S. ambassadors and has seated 11 openly-gay judges on the federal bench.
The administration’s brief was one of more than 70 filed with the Supreme Court supporting the couples in the four states and urging the justices to find that same-sex marriage should be available nationwide.
Among the supporters were GOP officeholders, religious leaders and more than 300 of the nation’s largest companies — including the Super Bowl champions New England Patriots and the World Series-winning San Francisco Giants.
Briefs on behalf of the states defending their laws and of their supporters will be filed in coming weeks.
Juliet Eilperin is The Washington Post's White House bureau chief, covering domestic and foreign policy as well as the culture of 1600 Pennsylvania Avenue. She is the author of two books—one on sharks, and another on Congress, not to be confused with each other—and has worked for the Post since 1998.
Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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