Prop 8: Obama Supports Gay Marriage, But is It Constitutional?

The Supreme Court will soon be voting on a two cases related to LGBT rights, and more people than LGBT advocates are concerned with their position. President Barack Obama has been an ardent and vocal supporter of same sex marriage since he had a "shift in thinking" this last spring, mentioning LGBT rights in his inauguration as well as his first second-term State of the Union. However, same sex marriage faces greater challenges than from the executive in chief: a bill to overturn California's Proposition 8, which banned gay marriage in California and invalidated a number of same sex unions performed under the auspices of a previous ballot initiative, is coming up before the Supreme Court this month. In spite of the fact that for the first time ever, a majority of Americans support gay marriage, many LGBT rights advocates remain concerned that the Supreme Court may not overturn the bill, especially with the number of narrow rulings on important policy issues this year. 

President Barack Obama has done his best to avoid taking a stance on the Supreme Court’s decision on Prop 8, reminding the press that he has an opinion on the policy of same sex marriage but would not presume to tell the Court how to vote. However, his administration is considering filing an amicus brief, ABC News reports:

"Solicitor General Donald B. Verrilli Jr. is not required to file a so-called 'friend of the court' brief in the Prop 8 case, but sources said the administration is considering the possibility at the highest levels."

What are the implications of the Obama administration taking a stance on this divisive issue? While Proposition 8 may be an egregious human rights violation of LGBT Americans, an amicus brief from the executive branch may be a violation of constitutional division of governmental power. These "friend of the court" briefs would hold some sway, but it's unclear how much weight such a brief would carry. 

The scope of the brief is pivotal to understanding the case. While others have written more broad condemnations of Prop 8, asking for it to be viewed as unconstitutional nationally, the administration’s brief could only apply to California rather than taking a broader stance. Perhaps most crucially, it is important to understand that since the federal government does not play a role in the case (unlike the Defense of Marriage Act also before the Supreme Court this week), there's no imperative for the executive branch to take a side. With only one week left before the case, the White House must decide whether the implications of taking sides in the case would be detrimental or beneficial. 

At the end of the day, regardless of the Obama administration’s decision regarding the brief, this issue will be left up to the courts. The Supreme Court will be the ultimate authority in deciding whether or not Prop 8 will be overturned, regardless of Obama’s official stance or his personal opinion on marriage equality. Those in support of same sex marriage can only hope that the Supreme Court finds Proposition’s 8 flaws as constitutionally invalid as it is morally invalid.