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Saturday, March 2, 2013 - Page updated at 07:30 a.m.

Obama administration urges court to overturn Calif. gay-marriage ban

By Robert Barnes
The Washington Post

WASHINGTON — The Obama administration told the Supreme Court on Thursday that California’s ban on same-sex marriage violates the Constitution’s guarantee of equal protection, a position that could also cast doubt on prohibitions in other states.

The administration did not endorse a constitutional right to marry that would apply nationwide. But its friend-of-the-court brief said the court should review laws banning same-sex marriage under “heightened scrutiny.”

The administration’s entry into the legal battle over Proposition 8 — a voter initiative that amended the California Constitution in 2008 to limit marriage to a man and a woman — carried great symbolic value for those advancing the cause of marriage equality.

The Obama administration did not have to file a brief in the case but said how the court reviews laws that “target gay and lesbian people for discriminatory treatment” is of great interest to the government.

In California’s case, Solicitor General Donald Verrilli Jr. wrote, the state offers same-sex couples domestic partnerships but withholds marriage.

“California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8,” the brief says. “It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing ... but instead on impermissible prejudice.”

The brief noted that seven other states have similar domestic-partnership laws: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. But it did not call for the court to overturn those laws.

The administration has been under pressure from gay-rights groups and others to enter the Proposition 8 case, especially after President Obama’s inaugural address, in which he said, “If we are truly created equal, than surely the love we commit to one another must be equal as well.”

Adam Umhoefer, executive director of the American Foundation for Equal Rights, called the brief “a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded.”

Thomas Peters, communications director of the National Organization for Marriage and a supporter of Proposition 8, said his group “expects the Supreme Court to exonerate the votes of over 7 million Californians to protect marriage.”

The Supreme Court at the end of the month will consider two cases concerning same-sex marriage: the California case and a federal one to which the administration is a party. The broad outlines of the administration’s position in the California case are similar to those it filed last week in the federal case, United States v. Windsor, No. 12-307. But that case presents only the narrower question of the constitutionality of part of the federal Defense of Marriage Act, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and regulations.

The Supreme Court’s ruling in the Defense of Marriage Act case will at most decide whether the federal government can discriminate against same-sex couples even if they married in states that allow such unions. Nine states, including Washington and the District of Columbia allow same-sex marriage.

The case from California presents the broader question of whether there is a constitutional right to same-sex marriage in the states that do not allow it, which is why the brief is significant.

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