Obama's brief urges marriage equality ... in California (and seven other states)

Well ... mostly.  (Courtesy ABC News.) The United States Department of Justice has filed is amicus brief with the Supreme Court in the Prop 8 litigation. While it does say that the Equal Protection Clause of the Constitution requires that Prop 8 be struck down, whether the Court applies heightened scrutiny or the rational basis test, it does not go the further step that the Plaintiffs and others have urged in holding that Constitution requires marriage equality for all Americans.

Instead, the brief only argues that in those states which have granted civil unions to same-sex couples (DE, HI, IL, NV, NJ, OR, and RI), they must instead be granted the title of marriage with the full rights and privileges contained therein. The brief does not address whether all marriage laws which fail to recognize gay couples are invalid, though the logic of its argument would ultimately dictate this outcome. (Nor, for that matter, does it address whether Prop 8's backers have standing to pursue this appeal, when California's Governor and Attorney General have refused to defend Prop 8.)

The brief summarizes its punt as follows:

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 issue under circumstances not present here.

To be sure, the brief argues all the right things about why laws targeting gays should be subject to heightened scrutiny, and that none of the proffered justifications for treating their relationships differently have merit ("Reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles.")  Still, for those who were seeking a full-throated endorsement of 50-state marriage equality, you will find this brief lacking.

That said, from the day this suit was filed in May 2009, I have suggested that this limited path is the Court would ultimately take. And it can be dangerous to advance positions which the Court might reject, especially when they are not necessary for the resolution of the instant case. But, still, there was an opportunity for boldness here, and the Obama administration did not take it. As a great man once said:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law ' for if we are truly created equal, then surely the love we commit to one another must be equal as well.