Obama Moves Forward on Gay Marriage

It is the most decided act of the Obama administration in favor of gay marriage. In a document presented to the Supreme Court, which on March 26 will debate the case, the administration asserts that Proposition 8, the ban on gay marriage voted on by the citizens of California in 2008, “should be subjected to heightened scrutiny” and violates the right to equal protection guaranteed by the Constitution. In May 2012, Obama explained that, having thought long and hard about the subject of gay rights, having discussed it with family, friends and White House staff, and having listened to the requests from many U.S. soldiers, he declared himself “personally in favor” of gay marriage. The declaration, though in some way made necessary by a similar pronouncement from Vice President Joe Biden, caused a stir. It was the first time in history that an American president took such an open position on the subject of gay rights.

On that occasion, though, it was a “personal,” private position. In the case of the document presented to the Supreme Court, in legal lingo an “amicus brief,” it is instead a clear and unequivocal political and legislative choice. The Obama administration disputes the validity of the claims of supporters of Proposition 8, according to whom gay citizens of California do not have the need for gay marriage, already having “domestic partnerships” (similar to civil unions) available to them. According to the administration, “the designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”

Marriage, according to Obama, is therefore the one institution able to give gays equal rights. “Domestic partnerships,” or any form of civil union, for gays, are yet another form of discrimination. This affirmation with regard to the case in discussion, that of California, is destined to have significant repercussions on the whole national territory. If the Court should decide in favor of those who maintain that gay marriage represents the one true form of constitutional protection, all those U.S. states which recognize different forms of civil unions – Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island – will be in focus.

The word at this point passes therefore to the new judges of the Court, who appear divided according to their opposing ideological tendencies: the four conservatives against, the four liberals in favor. There remains the “swing vote” of the most centrist judge, Anthony Kennedy, who in a legal opinion in 2001 affirmed that “Prejudice may not…be the basis for differential treatment under the law.” That affirmation of 12 years ago now brings hope to many supporters of gay rights.

The position of the Obama administration comes at a moment in which other sectors of American politics demonstrate a significant evolution on the subject. In another amicus brief submitted to the Court regarding the case of Proposition 8 in California, 100 Republican politicians and officials are taking a position in favor of gay marriage. Among these are Mary Cheney, daughter of ex-Vice President Dick Cheney, ex-presidential candidates Jon Huntsman and Meg Whitman, ex-Governor of New Jersey and Administrator of the Environmental Protection Agency Christine Todd Whitman, and Mitt Romney’s strategist and counselor Ben Ginsberg. Among the Republicans who in the past months and weeks have endorsed gay rights are Dick Cheney, Laura Bush and Clint Eastwood.