Post submitted by Dan Rafter, Former HRC Associate Director of Communications

The New York Times is calling on the White House to file an amicus brief in Hollingsworth v. Perry, the case before the Supreme Court in which the fate of California’s discriminatory Prop 8 is to be decided.

In an editorial published this weekend, the Times made the case for why a brief from the White House could be so impactful:

Just a day after the inauguration, Mr. Obama’s spokesman, Jay Carney, said that while Mr. Obama supports same-sex marriage as a policy matter, the president still believes it is an issue for individual states to decide. That was Mr. Obama’s formulation when he first announced his support for same-sex marriage in May, and even then it made no sense, except perhaps as political cover approaching the general election campaign.

Marriage is traditionally regulated by the states, but there are constitutional limits on what states may do. The Supreme Court’s 1967 ruling in Loving v. Virginia prevented states from forbidding marriages between interracial couples like Mr. Obama’s own parents.

Furthermore, the day after the Proposition 8 case is argued, the Justice Department will be asking the Supreme Court to invalidate the Defense of Marriage Act, the atrocious 1996 statute that denies federal benefits to lawfully married same-sex couples. The government will be arguing that discrimination against gay people, a vulnerable minority group, is presumptively unconstitutional. It is hard to see how the marriage act’s discrimination is presumptively invalid but not California’s wiping out of existing marriage rights for gay people that were mandated by the state’s top court.

For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land — impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.

HRC President Chad Griffin has previously called on the White House to file a brief in the Perry case. While at the American Foundation for Equal Rights, Griffin recruited the legal dream team of David Boies and Ted Olson to successfully argue the case in front of California’s Ninth Circuit Court.

The Obama administration has previously instructed the Department of Justice to cease enforcing the discriminatory Defense of Marriage Act (DOMA). The Supreme Court will hear arguments regarding the constitutionality of DOMA the day after it hears arguments related to Prop 8. 

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