WASHINGTON -- The Obama administration is quietly considering urging the U.S. Supreme Court to overturn California's ban on gay marriage, a step that would mark a political victory for advocates of same-sex unions and a deepening commitment by President Barack Obama to rights for gay couples.
Mr. Obama raised expectations among opponents of the Proposition 8 ban when he declared in last month's inaugural address that gays and lesbians must be "treated like anyone else under the law." The administration has until Feb. 28 to intervene in the case by filing a "friend of the court" brief.
The Proposition 8 ballot initiative was approved by California voters in 2008 and overturned a state Supreme Court decision allowing gay marriage. Twenty-nine other states have constitutional amendments banning gay marriage, while nine states and Washington, D.C., recognize same-sex marriage. An administration brief alone is unlikely to sway the justices, but the federal government's opinion does carry weight with the court.
A final decision on whether to file a brief has not been made, a senior administration official said. Solicitor General Donald Verrilli is consulting with the White House on the matter, said the official, speaking on condition of anonymity because the official was not authorized to address the private deliberations publicly. While the Justice Department would formally make the filing, the president himself is almost certain to make the ultimate decision on whether to file.
Mr. Obama has a complicated history on gay marriage. As a presidential candidate in 2008, he opposed the California ban but didn't endorse gay marriage. As he ran for re-election last year, he announced his personal support for same-sex marriage, but said marriage was an issue that should be decided by the states, not the federal government.
To some, Mr. Obama's broad call for gay rights during his Jan. 21 inaugural address was a signal that he now sees a federal role in defining marriage. "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law," he said during his remarks on the U.S. Capitol steps.
But administration officials said Mr. Obama, a former constitutional law professor, was not foreshadowing any legal action in his remarks, simply restating his personal belief in the right of gays and lesbians to marry.
Seeking to capitalize on growing public support for gay marriage, advocates are calling upon the administration to file a broad brief not only asking the court to declare California's ban unconstitutional, but also urging the justices to make all state bans illegal.
The administration could also file a narrower brief that would ask the court to issue a decision applying only to California. Or it could decide not to weigh in on the case at all.
The Supreme Court will take up the case March 26. It has several options for its eventual ruling:
It could uphold the state ban on gay marriage, saying citizens of a state have the right to make that call, or endorse an appeals court ruling that would make same-sex marriage legal in California, but apply only to that state.
The court could also issue a broader ruling that would apply to California and seven other states: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. In those states, gay couples can join in civil unions that have all the benefits of marriage but cannot be married.
Ahead of next week's deadline, nearly two dozen states have filed briefs asking the justices to uphold the California measure. "There's a critical mass of states that have spoken out and believe states should continue to have the right to define marriage as between one man and one woman," said Jim Campbell, legal counsel for the Alliance Defending Freedom, which represents Proposition 8 backers.
Public opinion has shifted in support of gay marriage in recent years. In May 2008, Gallup found that 56 percent of Americans opposed it. By November 2012, 53 percent backed it.nation