The Obama administration proposed a weird (and kind of clever) argument for legalizing gay marriage that would effectively legalise it in eight more states.
But not one justice seemed to buy that argument when the high court was hearing arguments Wednesday on California’s gay marriage ban Proposition 8, SCOTUSBlog reports.
“It is an understatement to say that the justices were less than enamoured with the government’s argument,” SCOTUSBlog’s John Bursch writes.
To be sure, the government’s argument is a little weird. It says states that allow civil unions or domestic partnerships for gays should have to allow gay marriage too.
The denial of marriage to same-sex couples, particularly when a state “grants same-sex partners all the substantive rights of marriage, violates equal protection,” the Obama administration wrote in its “friend of court brief” in the Prop 8 case.
However, states that don’t even give gays the right to a civil union would not have to grant them marriage rights.
John Roberts, Anthony Kennedy, Samuel Alito, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer each seemed sceptical of this argument, SCOTUSBlog points out.
“So a State that has made considerable progress has to go all the way, but . . . if . . . the State has done nothing at all, then . . . it can . . . do as it will?” Ginsburg said.
Sotomayor said there was an “irony” to the Obama administration’s “eight state solution.”
The LA Times’ David Savage has suggested that the “eight state solution” was meant to be politically pragmatic. It’s possible the Obama administration didn’t want to impose gay marriage on all the red states that haven’t even give gays the right to civil unions.
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