Obama Administration “Go Slow” Approach on Gay Marriage

Credit: Allen J. Schaben / Los Angeles Times

Credit: Allen J. Schaben / Los Angeles Times

Ruling Recommendation Would Not Bring Gay Marriage to Red States

The Obama Justice Department has submitted an Amicus Brief with recommendations to the Supreme Court to “go slow” in its pending decisions that would potentially affect gay marriage laws nation-wide. The Justice Department, while refusing to defend the Defense of Marriage Act (DOMA) before the High Court, has recommend to the court to limit its scope and opinion to Section 3 of DOMA that prohibits gay married couples from receiving the same federal benefits as heterosexual married couples. This narrow ruling would not overturn Georgia’s Defense of Marriage Act or other similar constitutional amendments or laws in 37 other states.

The “logic” behind recommending such a narrow ruling would in effect, overturn California’s Proposition 8, a voter-based initiative prohibiting same-sex marriage. It would also uphold the lower court ruling in Windsor v. the United States of America – where Edith Windsor, who was legally married to her lesbian partner, had to pay $363,000 in Federal estate taxes when Thea Spyer died – a heterosexual couple would not have had to pay this tax. This approach is also known in civil rights legal circles as “the eight state solution.”

In “the eight state solution”, the court is urged to view discrimination against the L,B,G,T community as “akin to gender bias.” Such a ruling would potentially recognize L,B,G,T citizens as a “protected class” under U.S. civil rights law and possibly open the door to a state-by-state challenge to state DOMA laws and constitutional amendments on the grounds that state cannot legally justify why gay and lesbian persons should be treated any different under state marriage laws. Rather than legalize gay marriage in one fell swoop, the High Court could allow the national debate on gay marriage to continue without forcing Red states, like Georgia (and the Deep South), to immediately legalize same-sex marriage.

Lastly, national opinion still trends towards legalizing same sex marriage in the U.S. While it is thought the High Court tends to take the pulse of the public on controversial issues, Justice Anthony Kennedy is seen as the “lynch pin” in what the court will do. Kennedy has been a stalwart supporter of free speech, individual liberty and willing to place limits on government authority. All eyes will be on Kennedy and the questions he poses to both sides of these cases. Gay marriage may or may not be coming to Georgia – all dependent on the scope of the High Court’s approach.