The U.S. Supreme Court is hearing two huge gay marriage cases next week.
One of those cases will focus on Proposition 8, a voter-approved law banning gay marriage in California.
However, Obama didn’t actually say gay marriage should be legal in every state. Instead, he’s proposing what some call “an eight-state solution:” requiring California and the seven other states that allow civil unions or domestic partnerships to allow gay marriages too.
Here’s Obama’s logic from the brief:
Under California law, same sex partners may “enter into an official, state-recognised relationship;” i.e., domestic partnership … Proposition 8 nevertheless forbids same-sex couples from solemnizing their union in marriage, and instead relegates them to a legal status — domestic partnership — distinct from marriage but identical to it in terms of the substantive rights and obligations under state law … Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection.
The Obama brief goes on to note that seven other states allow civil unions but not marriage for gays. Those states are Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island, according to SCOTUSBlog.
Obama is essentially saying states that let only allow same-sex civil unions are discriminating against gays by not taking the next step and letting them get married. This is a strange claim because obviously those states are more progressive on gay rights than states that don’t any kind of legal recognition for gay marriage.
Obama’s argument might be more pragmatic than logical. The states that allow civil unions are mostly blue states that would be less likely to balk at the idea of gay marriage than red states.
The LA Times’ David Savage writes the Obama administration’s reasoning might be aimed at getting “swing voter” Justice Anthony Kennedy on board with a moderate proposal that would make gay marriage legal in a total of 17 states, including the nine states that already allow it..)
“While this would be a significant ruling,” Savage writes, “it would not require Justice Kennedy and his colleagues to mandate gay marriage in the red states where majority opinion continues to oppose it.”
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