Gay marriage case offers Supreme Court many options


WASHINGTON — Opponents of California’s Proposition 8 have served up quite a diverse menu to the Supreme Court.

They share the goal of letting gay couples marry in California. But in a collection of legal briefs, Proposition 8 critics present arguments that range from the aggressive, to the nuanced, to the tightly restrained.

Some, like former California gubernatorial candidate Meg Whitman, actor Clint Eastwood and a host of fellow Republicans, are urging the court to swing for the fences. They want full constitutional protections effectively covering same-sex couples in every state. Others, like the city of San Francisco, likewise support gay marriage, but say the court can also resolve the case technically without involving the Constitution at all.

Still others, like the Obama administration, are proposing a thread-the-needle approach that embraces equality for all same-sex couples but emphasizes a limited immediate legal application to California and seven other states that currently ban gay marriage but offer domestic partnership rights.

“The court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issues not present here,” Solicitor General Donald Verrilli Jr. said.

Legally, the administration’s reasoning would only extend initially to Hawaii, Nevada, New Jersey, Oregon, Delaware, Rhode Island and Illinois, as well as California. These states provide civil benefits to same-sex domestic partnerships but, in Verrilli’s words, block them from “solemnizing their union in marriage.” This explicit contrast, the administration argues, violates the 14th Amendment’s equal-protection guarantees.

Thirty-seven states currently prohibit same-sex marriage, either through statutes or provisions in state constitutions. A broadly written Supreme Court decision that enshrines constitutional protections for such marriages could spur cries of judicial activism and risk racing ahead of the U.S. public. Instead, the tactical reasoning may be that a narrower case could keep the court more closely aligned with evolving public sentiment.

Pew Research Center surveys show 43 percent of U.S. residents surveyed opposed gay marriage last year, a significant number, but still down from 60 percent in 2004.

“I do think that we’re seeing on a state-by-state basis progress being made,” President Barack Obama said at a news conference Friday, adding that “more and more states (are) recognizing same-sex couples and giving them the opportunity to marry and maintain all the benefits of marriage that heterosexual couples do.”

The California case arose after the state Supreme Court ruled same-sex couples had the right to marry. Voters subsequently changed the state’s constitution in 2008, in the Proposition 8 ballot measure, to limit marriages to those between one man and one woman.

Asked why his administration isn’t asking the court for a broad ruling protecting same-sex marriages in every state, Obama said that “the solicitor general, in his institutional role going before the Supreme Court, is obliged to answer the specific question before them. And the specific question presented before the court right now is whether Prop. 8 and the California law is unconstitutional.”

After California officials declined to defend Proposition 8 in court, individuals associated with Sacramento-based ProtectMarriage.com took up the case. They say they were injured by the state’s inaction and note that the California Supreme Court concluded that Proposition 8 supporters could defend the measure “in lieu of public officials who refuse to do so.”

Many advocates echo the broad constitutional conclusions of Whitman, Eastwood and the other Republicans who signed a brief chiefly authored by former Solicitor General Seth Waxman.

“The right to marry indisputably falls within the narrow band of specially protected liberties that this court ensures are protected from unwarranted curtailment,” the brief states.