Upcoming brief expected to argue that marriage equality should be law of the land

by Brian Leubitz

There has been a lot of discussion over the past few days as to whether the president will file a brief at the Supreme Court about Prop 8. The answer, apparently, is yes.

The Obama administration will endorse same-sex marriage today by telling the Supreme Court that California should not be permitted to ban gays and lesbians from tying the knot.

The highly anticipated legal brief was expected later in the day, just hours before the deadline, the Associated Press reported.

UPDATE: Here’s the brief, my take coming this evening. You can also find it over the flip.

The underlying argument of the brief is relatively simple. Namely, laws prohibiting members of the LGBT community from doing something, in this case getting married, should be subject to “heightened scrutiny.” That is to say, government needs something more than merest rational basis for the discriminatory law. The administration’s brief then goes on to say that the purported reasons given by the Prop 8 proponents do not meet that heightened scrutiny.

You’ve heard all the reasons they came up with why Prop 8 was valid: teh kidz, teh judges, and teh traditions. The government dismisses these with the one bullet that goes to the heart of the issue: California grants all the rights and privileges of marriage to gay and lesbian couples through domestic partnership. So, it can’t be merely to protect children. Denying the word “marriage” is simply done for impermissible purposes. Or, in the solicitor general’s words:

Private respondents, committed gay and lesbian cou-ples, seek the full benefits, obligations, and social recog-nition conferred by the institution of marriage. California law provides to same-sex couples registered as do-mestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.

In other briefing news, NFL players Chris Kluwe (Minnesota’s punter) and Brendon Ayanbadejo (Ravens linebacker) filed their own brief, available here. Not sure it will carry similar weight to the solicitor general’s, but their effort is sincerely appreciated.