SCOTUSblog on the President's Prop 8 brief
Much of the logic of the government’s brief — its first entry into the controversy over California’s Proposition 8 — could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly. [Snip] In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution.
The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.
Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.
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What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.
The eight states that apparently would be covered by such a decision are: California (whose Proposition 8, which denies marriage to couples who already have all of the other marital benefits, would fall), Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
- See more at: http://www.scotusblog.com/2013/02/u-s-endorses-limited-gay-marriage-right/#sthash.nb1MlM9T.dpuf
Full brief:http://sblog.s3.amazonaws.com/wp-content/uploads/2013/02/12-144tsacUnitedStates.pdf