Will Obama's Gay Marriage Stance Affect Prop 8 Case?

            Racial discrimination in housing was legal in most of the country when the U.S. Supreme Court considered the constitutionality of a California ballot measure that prohibited either the state or any local government from banning the practice. But with the pivotal support of the United States government, the Supreme Court in 1967 struck down the ballot measure, known as Proposition 14, on the ground that it violated the federal Constitution by putting the power of the state behind private racial discrimination.

            The current Supreme Court is likely to face a comparable issue within a year or two when the constitutionality of California’s Proposition 8, banning marriage for gay and lesbian couples, reaches the justices. And the position of the United States government could once again be a key to the decision from a court closely divided along ideological lines.

            This could be the most important practical aspect of President Obama’s decision last week (May 9) to endorse marriage rights for same-sex couples. If re-elected, Obama will have to decide whether the government, through the solicitor general’s office, sides with the gay and lesbian couples challenging the 2008 ballot measure or sit out the case.

            Obama’s slowly evolved decision to endorse same-sex marriage, announced in a hastily arranged interview with ABC’s Robin Roberts, is evidently of profound historic importance. But it has no immediate legal or political effect, and its eventual political impact is hard to predict.

            The president’s announcement came one day after North Carolina voters approved, by a 3-2 margin, an anti-gay marriage amendment to the state’s constitution. Had the president come out a few days earlier, the North Carolina vote almost certainly would have been about the same. It remains to be seen whether the president’s position has any effect on the gay marriage measures expected on the ballots in four states in November: Maine, Maryland, Minnesota, and Washington. One clue that it might not: California voters approved Prop 8 by a 4 percent margin in 2008 even as Obama was gaining 61 percent of the vote.

            As for Obama’s re-election bid, an instant Gallup poll found that 60 percent of respondents said Obama’s decision would have no effect on their votes. The others divided roughly 2-to-1 in saying it would make them less likely versus more likely to vote for Obama. Whatever people may tell pollsters, the presidential race is likely to turn on what are always the most important issues: the economy and war and peace.

            Whoever is in the White House in 2013, however, can determine the government’s position on the gay marriage cases moving toward the Supreme Court. Obama has already shown some courage, and taken some heat, by directing Justice Department lawyers to stop defending the federal Defense of Marriage Act (DOMA), which bars legally married same-sex couples from receiving federal benefits or tax preferences allowed other married couples. The most advanced case on the issue was argued before the First U.S. Circuit Court of Appeals in Boston in March and seems likely to reach the Supreme Court during the 2012-2013 term.

            The Prop 8 challenge is now on hold awaiting the decision by the full Ninth U.S. Circuit Court of Appeals on whether to rehear the ruling by a three-judge panel to invalidate the measure. An en banc rehearing, if ordered, would likely delay a Supreme Court showdown until the 2013-2014 term. 

            The position that a hypothetical President Romney would take on either the DOMA or Prop 8 case seems easy to predict. Romney responded to Obama’s new stance by repeating his previous position that he opposes marriage rights for same-sex couples. In the White House, Romney would probably direct government lawyers to resume defending DOMA and quite possibly would have the solicitor general argue for upholding Prop 8 at the Supreme Court.

            Obama may have hemmed himself in on the Prop 8 case by saying, despite his new position, that the matter should be left up to the states. Yet the Prop 8 challenge is framed in a way that would allow Obama to join in urging that it be struck down consistent with that view. The challengers argue, and the Ninth Circuit panel ruled, that state voters had no adequate reason in November 2008 for withdrawing the marriage rights recognized for same-sex couples six months earlier by the state supreme court.

            In that sense, the case is similar to the challenge to the anti-open housing initiative approved by California voters in 1966. In challenging the measure on behalf of the government, then-Solicitor General Thurgood Marshall acknowledged that California did not have to prohibit racial discrimination in housing, but argued that voters could not use the state constitution to prevent state or local lawmakers from enacting such a ban in the future.

            The Supreme Court agreed, by a 5-4 vote, in a decision along the lines of Marshall’s argument (Reitman v. Mulkey). In a one-vote case, one must assume the government’s position had some impact. The government’s position in the Prop 8 case could likewise be significant, especially for the justice likely to hold the balance of power between the conservative and liberal blocs: Anthony M. Kennedy. If he is still in the White House when the case reaches the Supreme Court, Obama will have to decide whether he has the courage of his newly evolved convictions on this issue.