WASHINGTON — The Supreme Court's decision to hear a set of cases about marriage puts President Obama's civil rights legacy — something that seemed to have been established in his decision to support marriage equality this year — back in the balance.
Obama finally made clear this May his personal view that same-sex couples should be able to marry. And his administration's stance, at issue in the one Supreme Court case, is that limiting the federal definition of "marriage" to those marriages between one man and one woman is unconstitutional.
But Obama has not said whether he believes the U.S. Constitution requires states to allow same-sex couples to marry, at issue in the second case.
As of Friday, neither the White House nor the Department of Justice were willing to comment on whether that will change in light of Friday's Supreme Court announcement. Failure to stake out a position in support of the same-sex couples challenging California's Proposition 8, at least in court, could draw significant criticism from LGBT rights advocates and supporters in the coming months.
In the past, Obama and his spokespeople have made clear that Obama opposed Proposition 8 when put to the voters and that he believes it is discriminatory. What Obama has not said — about California or any of the state constitutional amendments prohibiting same-sex couples from marrying — is whether he believes it is unconstitutional for states to do so.
When Obama announced in May that he had reached the conclusion that same-sex couples should be allowed to marry, he was careful to note that it was an expression of his own personal view. As recently as October, he reiterated on MTV, "[H]istorically, marriages have been defined at the state level." About same-sex couples' marriage rights, he said, "There's a conversation going on."
At the time, Obama added, "The courts are going to be examining these issues." He did not, though, offer up his view on what he believes the courts should conclude about the issue. Moreover, Obama has appeared content to allow his views about that step relating to same-sex couples' marriage rights to remain undefined as the "conversation" continues.
The Supreme Court's decision to hear the appeal of the Proposition 8 challenge speeds that conversation up and puts the issue front and center. And although the Obama administration is not required to weigh in on the appeal, former George W. Bush administration Solicitor General Theodore Olson, the lead lawyer fighting Proposition 8, said on Friday that he hopes the president will.
"I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate," Olson said, noting that the administration has not yet taken a position in the case.
That view was echoed on Sunday by Freedom to Marry President Evan Wolfson, who told BuzzFeed, "President Obama and the Justice Department should absolutely urge the Supreme Court to restore the freedom to marry in California."
The challenge to Proposition 8, Hollingsworth v. Perry, is being considered by Supreme Court at the same time it is hearing a challenge to the federal marriage definition in the Defense of Marriage Act, which Obama is urging the court to declare unconstitutional. The reasoning of the federal government in the DOMA case is that laws like DOMA that target LGBT people should be subjected to additional scrutiny by the courts because of several factors, including the history of discrimination faced by LGBT people and the group's relative political powerlessness. Under that heightened scrutiny, the argument goes, DOMA should be found unconstitutional.
That logic, Olson said Friday, applies as well to the case that he and David Boies have brought for the American Foundation for Equal Rights against Proposition 8.
"I think that, given the position that the government has taken in the DOMA cases and the reasoning that they have used in filing their brief would apply with great effect in our case, the Perry case, as well," Olson said. "And I’m quite confident that if they did participate that they would support our position in this case that the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny. It's a denial of rights, and it's quite clear that it is."
Having served as the solicitor general — the administration's Supreme Court lawyer — in the George W. Bush administration, Olson understands the importance of having Obama's solicitor general, Donald B. Verrilli Jr., file a brief in support of his case. Although members of an independent branch, the justices pay close attention to the filings of the solicitor general — so much so that the person in Verrilli's position often has been referred to as the "10th justice."
As Richard Socarides, a lawyer and former Clinton White House official, said Sunday, "The opinion of the administration as expressed by the Department of Justice is almost always an important persuasive factor considered by the court. It is, after all, the opinion of the government."
Since the justices are considering both the DOMA challenge, where the solicitor general's office will be arguing on the government's behalf, and the Proposition 8 challenge during the same term, Socarides said it's untenable for the administration to avoid taking a position on Proposition 8.
"The solicitor general is going to get asked at argument anyway what the government thinks would happen if you apply heightened scrutiny to Proposition 8," he said. "So there is no way of avoiding it."
Additionally, even if not formally, a public statement by Obama on the issue — like other movement in coming months — would play into the political climate that can affect court rulings.
If either Obama or his administration is planning on weighing in, however, no one was ready to announce that news at this time.
"For specific comment on the Supreme Court’s activity today, I would point you to the solicitor general’s office at the Department of Justice," White House spokesman Shin Inouye said Friday.
A spokesperson at the Department of Justice told BuzzFeed on Friday that the solicitor general's office had no comment on the news.
A final decision on what Obama thinks and whether his administration will interject the government's view could still be a few months away, as a brief supporting the couples challenging Proposition 8 will not need to be filed with the court until mid-February.