Another chance to support equality: Will Obama’s DOJ weigh in on Prop. 8 appeal?

Posted on 24 Aug 2010 at 10:44pm

Team Obama keeps hoping to avoid the issue of marriage equality. But, they can’t ignore it. Over the next few months, we’re going to find out if the DOJ is defending DOMA’s constitutionality in the Massachusetts cases. And, we’ll find out if Obama meant it when he said he supported the Prop. 8 decision. The crack team of lawyers in Obama administration can go on-the-record with its support of Judge Walker’s decision. They can. But, will they?:

Days before the 2008 election, then-candidate Barack Obama said California’s Proposition 8 was “unnecessary” and “not what America’s about.”

Now, some same-sex marriage advocates are hoping Obama’s Justice Department will make a similar argument in court. The federal government is not a party to the Proposition 8 litigation, which pits gay and lesbian couples against supporters of a state constitutional amendment banning same-sex marriage. But the Justice Department could weigh in as amicus curiae — either when the case arrives at the steps of the U.S. Supreme Court or, sooner, before the 9th U.S. Circuit Court of Appeals. Such a decision would typically be up to Acting Solicitor General Neal Katyal with input from across the federal government, including the White House.

The involvement of the Justice Department would add further significance to what is already the nation’s most-watched court case, officially named Perry v. Schwarzenegger, while also raising difficult political questions for the Obama administration. “There have been people encouraging the U.S. Justice Department to follow the progress of the Perry case, to discuss it internally and to support the civil rights of gay and lesbian Americans,” said Jennifer Pizer, director of Lambda Legal’s Marriage Project, which filed an amicus brief in the case’s trial phase.

Pizer would not detail internal strategy, such as lobbying of White House or Justice Department officials, but she and other advocates of same-sex marriage said there are reasons for the federal government to become involved in the case. For one, there are Obama’s 2008 comments in opposition of Proposition 8. For another, they argue, the federal government has an interest in protecting civil rights — though that interest has been complicated in the context of homosexuality.

Let’s be clear, this won’t be a legal decision. It will be pure politics. So far, the political geniuses in the White House (the same geniuses who took Obama from an approval rating in the hig 60s down to 43% this week) have stuck to their opposition to marriage equality. Axelrod reiterated that position the day after the Prop. 8 decision. Yes, the Obama political operation wants to stay as far away from the marriage issue as possible. But, the longer they wait to deal it — and by deal with it, I mean Obama supporting marriage equality — the more outdated and out-of-touch the President looks.




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