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Jerry Brown Backs Olson-Boies Prop 8 Suit

Updated

It’s undeniable the contrast between Jerry Brown and President Obama as they are put in the position of having to issue legal responses to anti-same-sex marriage laws that they are on record opposing.

The former, California’s attorney general, earned praise from gays rights orgs; the latter received stinging criticism.

In a response to the David Boies-Ted Olson federal suit challenging Proposition 8, Brown agreed that Proposition 8 is unconstitutional but that it shouldn’t be suspended immediately because it would leave couples in “legal limbo.”

The suit, which was filed in U.S. District Court in San Francisco, seeks a preliminary injunction that would put Prop 8 on hold until the case makes its way through the courts. It challenges the initiative as a violation of constitutional guarantees of due process and equal protection. 

In a brief filed on Thursday, Brown said that by putting Prop 8 on hold, same-sex couples would get married but face the prospect that the suit would be unsuccessful. Suspending  Prop 8 would “create significant uncertainty for many persons concerning a relationship in which certainty is of the utmost importance,” he said in the filing.

Gov. Arnold Schwarzenegger expressed a similar argument in his own filing.

On Friday, Brown submitted another brief where he made it clear that he supports the philosophy of the suit, which for the first time challenges Prop 8 at the federal level, and believes that it should be ruled unconstitutional and overturned. “Taking from same-sex couples the right to civil marriage that they had previously possessed under California’s Constitution cannot be squared with guarantees of the Fourteenth Amendment,” the filing stated.

Boies and Olson are representing the case, filed on behalf of two same-sex couples seeking to get married, but it is backed by the American Foundation for Equal Rights, led by political consultant Chad Griffin and a board of directors that include producer Bruce Cohen, screenwriter Dustin Lance Black and director Rob Reiner. 

Chief Judge Vaughn Walker is scheduled to hear the request for a preliminary injunction on July 2. Although Walker is an appointee of President Reagan, it’s hard to discern exactly which way he leans on this issue. His decisions have been “unpredictable,” in the words of John Dean.

Brown’s contention that Prop 8 is unconstitutional drew words of praise from Griffin, who said in a statement, “Today’s filing by Attorney General Jerry Brown underscores that Proposition 8 is a clear violation of the United States Constitution because it denies all people equal rights. We are confident that our state’s chief legal officer’s strong opinion will help this case move quickly through the courts so that every Californian will soon be treated equally under the law.”

Equality California also praised Brown’s move, but also noted the “stark contrast” his opinion was to that of a Justice Department filing that defends the Defense of Marriage Act.

In that separate suit, Orange County couple Arthur Smelt and Christopher Hammer are challenging DOMA because it denies same-sex couples federal benefits. Justice Department lawyers argued that the suit should be dismissed, but what has angered gay rights orgs are the array of reasons given in the government’s filing itself, including contentions that the act really isn’t denying rights.

A coalition of groups, including the Human Rights Campaign and the ACLU, issued a statement saying that they were “deeply disappointed” by the move, and challenge the government’s contention that DOMA does not deny rights.

“We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states.”

The Justice Department issued its own statement explaining why it filed the brief: “The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents LGBT couples from being granted equal rights and benefits. However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”

What is baffling to gay supporters of Obama, however, is far the brief goes in defending DOMA, as Obama repeatedly campaigned on a pledge to work to repeal the law.

John Aravosis of AmericaBlog initially called attention to the story and, after obtaining a copy of the brief, called it “gratuitously homophobic.” “It reads as if it were written by one of George Bush’s top political appointees. I cannot state strongly enough how damaging this brief is to us. Obama didn’t just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional.” Others cite examples where previous administrations have refused to defend laws they do not support in court challenges.

My cynical side screams “POLITICS” folks. One theory: Obama’s administration has made the calculation that it is better to upset gay activists and delay any action on DOMA, Don’t Ask, Don’t Tell, and other issues, than to make some step that will unite a Republican party struggling to get its footing. Or the White House has a strategy to say as little as possible so as to not reignite the culture wars at a time when they try to garner support their agenda for healthcare, the environment and the economy. But that still doesn’t answer the question of why issue a brief so forceful in its defense of DOMA?

Update: The full brief is here. What is striking is that there seems to have been ample opportunity to move for dismissal merely on procedural grounds. In other words, the administration argues that the plaintiffs fail to prove an “injury in fact” in that they did not actually seek federal benefits as a same-sex couple or seek to have their union recognized in another state. But Justice Department lawyers also go to great length to justify DOMA, raising not just the argument of incest and pedophilia (specifically, that some states’ recognition of the marriage of first cousins or 16-year-olds have not been recognized in others), but rejecting claims that the ban on same-sex marriage bears relationship to Loving vs. Virginia, the Supreme Court’s decision that struck down interracial marriage. That should give pause as Boies and Olson pursue their case, the the brief helps define the challenge ahead.

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