Jacob Sullum

When President Obama endorsed gay marriage last year, he said the issue should be left to the states. Last week, he said it shouldn't.

To be more precise, a Supreme Court brief filed by the Obama administration last Thursday argues that California's ban on gay marriage denies homosexuals the "equal protection of the laws" guaranteed by the 14th Amendment. Although the brief focuses on Proposition 8, the 2008 ballot initiative that overturned a California Supreme Court decision requiring the state to recognize gay marriages, its logic suggests that a policy Obama himself rejected less than a year ago is constitutionally mandatory.

For many years, Obama said he supported equal rights for gay couples, except for the right to call their relationship a "marriage." That is exactly the policy he now says is unconstitutional.

Proposition 8 amended California's constitution to declare that "only marriage between a man and a woman is valid or recognized." But the initiative's backers assured voters that "Proposition 8 doesn't take away any rights or benefits of gay or lesbian domestic partnerships." And under California law, as the Obama administration's brief notes, "domestic partnerships carry all the substantive rights and obligations of marriage."

The administration argues, rather counter-intuitively, that California's decision to treat gay and straight couples the same but for the word marriage makes its policy more vulnerable to constitutional challenge than a policy that does not recognize same-sex unions at all. Why? Because the only point of withholding the label is to mark gay marriages as inferior, a goal motivated by "impermissible prejudice," which is not a constitutionally valid reason for treating people differently under the law.

The administration could have argued, as the trial judge and the U.S. Court of Appeals for the 9th Circuit did, that the justification for Proposition 8 is so slight that it fails even the highly deferential "rational basis" test that is used in most equal protection cases. But the Justice Department had already taken the position, in a separate case involving the federal Defense of Marriage Act(DOMA), that discrimination based on sexual orientation should receive the same sort of "heightened scrutiny" that the Supreme Court has said is appropriate for discrimination based on sex or "illegitimacy" (i.e., birth outside of marriage).

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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