The Obama administration is considering stepping in to urge the Supreme Court to overturn California’s ban on same-sex marriage, potentially cementing his commitment to LGBT rights in this term and setting a standard with implications for all 50 states.
The Supreme Court is due on 26 March to take up the case of whether to overturn Proposition 8, which in 2008 added a clause to the Californian constitution stating that marriage could only be recognised by the state if it were between a man and a woman, causing widespread controversy.
A senior administration official, who wished to remain anonymous, said that Solicitor General Donald Verrilli was consulting with the White House on the matter, and that a final decision on whether to act has not yet been made.
The administration will have to make their decision by 28 February, the deadline they have to file a “friend of the court” brief on behalf of the Justice Department. The final decision will reportedly be down to President Obama himself.
In an interview on Wednesday, President Obama said: “I have to make sure that I’m not interjecting myself too much into this process, particularly when we’re not a party to the case,” but he added that his administration was seeking to uphold the principle that gay people should have the same rights as straight people.
Although the brief would not force the Supreme Court to overturn the ban, the advice of the federal government and the president would weigh in on their ruling.
The Supreme Court could potentially forbid bans on same-sex marriage in all states. Equal marriage advocates say that the administration should broaden their brief to recommend that the Supreme Court make this ruling.
“If they do make that argument and the court accepts it, the ramifications could be very sweeping,” said pro-equal marriage attorney Richard Socarides.
Nearly two dozen states have filed briefs with the Supreme Court urging them to uphold the ban, which equal marriage opponents say is a sign the Obama administration should stay out of the case.
“There’s a critical mass of states that have spoken out and believe states should continue to have the right to define marriage as between one man and one woman,” said Jim Campbell of the anti-equal marriage Alliance Defending Freedom.
Lawyers from both sides of the debate have met with President Obama, with equal marriage advocates urging him to file a brief, and opponents asking him to abstain.