The Obama administration has filed an amicus brief in Hollingsworth v. Perry, the case challenging the constitutionality of California’s Proposition 8, the 2008 law that removed the right of same-sex couples to marry in that state.
Solicitor General Donald B. Verrilli, Jr., filed the brief on behalf of the government in support of the plaintiffs in Hollingsworth v. Perry, urging the Supreme Court to affirm a lower court’s ruling that Prop 8 is unconstitutional.
In its brief, the government argues that Prop 8 should be subject to heightened judicial scrutiny because it discriminates on the basis of sexual orientation. Since Prop 8 cannot be justified as substantially furthering any important state interest, the brief claims, it violates the Equal Protection Clause of the Constitution.
The brief focuses narrowly on Californian voters’ right to discriminate against same-sex couples in matters of marital rights; it does not explicitly call for a ban on “separate but equal” arrangements like domestic partnerships or civil unions, which are effective in seven states. But its opinion of such arrangements is clear: ““the designation of marriage…confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”
Attorney General Eric Holder issued a statement regarding the filing yesterday. “The government seeks to vindicate the defining constitutional ideal of equal treatment under the law. Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination. The issues before the Supreme Court in this case and the Defense of Marriage Act case [Windsor v. United States] are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our nation as a whole.”
Last week, the government filed an amicus brief in the Windsor case, which challenges the Defense of Marriage Act’s legality in denying same-sex married spurses the rights bestowed on opposite-sex married couples. The Supreme Court will hear both Hollingsworth v. Perry and Windsor v. U.S. at the end of this month.
“The brief filed by the Solicitor General is a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded. It is an unprecedented call to action by our government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law. AFER looks forward to having Solicitor General Verrilli and the federal government by our side as we make the case for marriage equality for all before the Supreme Court,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights (AFER), the sponsor of the Perry case.
Freedom to Marry president Evan Wolfson alluded to Obama’s promise of equality in his second inaugural address. "President Obama spoke of the nation's destination: liberty, equality, and inclusion for all…It is time for the justices, like our president and the majority of Americans, to embrace the freedom to marry and get our country on the right side of history."