Obama must publicly acknowledge before the U.S. Supreme Court that the Constitution's guarantee of equal protection under the law applies to all couples who wish to marry, regardless of the state in which they live or whether their spouse is named Michael or Michelle.
The Supreme Court announced today that it will take up the Prop 8 case and one of the several DOMA cases. The next step in the review process for both cases is a scheduling order, which should come soon, laying out the date for oral arguments at the Supreme Court.
Today we rejoice in this opportunity for our Justices to affirm our Constitution's promises of liberty, equality and human dignity as we watch the arc of the moral universe continue to bend toward justice.
There will be a natural tendency to focus on the legal challenges and the political fights, but history will show the true story of how we achieved marriage equality and how it was in fact a quilt woven of thousands of personal tales, most of which existed entirely outside the courtroom.
The plaintiffs, as expected, oppose Supreme Court review of this case, writing that "this Court's traditional standards for the exercise of certiorari jurisdiction lead inexorably to the conclusion that this Court's review is not warranted."
When viewed through a longer lens, it becomes clear, to me, at least, that the DOMA cases will have a huge impact on marriage equality in the U.S., whereas the Prop 8 case will be an important but less integral part of a natural progression.
At the very least, because of the civil-unions issue, it it clear that a DOMA decision at the Supreme Court before a Prop 8 decision would be a more logical one, because striking down DOMA would affect future Prop 8 litigation, but striking down Prop 8 would have no effect on DOMA.
DOMA radically changed the status quo for American marital law (at least for gay and lesbian couples), and the Supreme Court may very well look favorably upon restoring the traditional federalism of state marriage rights that existed before DOMA was enacted.
The federalism claims that the DOMA cases make are relatively comfortable waters in which the Supreme Court's conservative justices can swim. Judge Reinhardt's Prop 8 analysis, on the other hand, however cautious it may be, is essentially a brand-new constitutional argument.
I firmly agree that the best possible outcome for marriage equality in the next year or so is for the Supreme Court to consider the DOMA cases, uphold the lower courts' rulings striking down the law, and decline to hear the challenge to the Ninth Circuit's Prop 8 decision.
With rulings on gay marriage from two federal appellate courts in the past week, it is now more likely that the Supreme Court will finally grapple with the key civil rights issue of our time. We are in a stage where timing, litigation strategy, and judicial politics will all be critical.
Now that the Ninth Circuit has denied en banc rehearing of the three-judge panel's decision, the case will face its final test soon, at the Supreme Court, as Prop 8's proponents are widely expected to seek review of the three-judge panel's decision.
The Ninth Circuit concluded that Proposition 8 discriminated against gay men and lesbians, not to further any proper legislative goal, but to decree their inequality, "to lessen the[ir] status and human dignity... and to officially reclassify their relationships and families as inferior...."
When politicians attack Perry or any judicial decision that doesn't accord with their own views, claiming those decisions are the product of "rogue" judges, they reveal a frightening misunderstanding of the American legal system.
Under the Ninth Circuit Court's new ruling, Proposition 8 was found to violate the federal Constitution, so it no longer would control, and thus the right of gays and lesbians to marry would be restored fully under that ruling, assuming that the decision stands.
The evidence in Perry v. Schwarzenegger made clear that gays and lesbians are denied full equality because of historic prejudice and fear. There is no other reason, but the problem is only 0.000001 percent of Americans actually got to see it.