An editorial published online Sunday in The New York Times called on President Barack Obama to take a strong stand on the upcoming Supreme Court case regarding Proposition 8, the 2008 California state law that banned same-sex marriage. The editorial urged Obama to direct his solicitor general to file a brief in the case, which will be argued before the court in March.
Now that Mr. Obama has declared that he believes denying gay people the right to wed is not only unfair and morally wrong but also legally unsupportable, the urgent question is how he will translate his words into action. To start, he should have his solicitor general file a brief in the Proposition 8 case being argued before the Supreme Courtin March, saying that California’s voter-approved ban on same-sex marriage is unconstitutional.
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.
Read the entire editorial here.