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Obama Administration Brief Doesn't Call For End To Bans On Gay Marriage


From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish. This evening, the Obama administration filed a friend of the court brief urging the U.S. Supreme Court to strike down California's ban on gay marriage, but the brief does not call for abolition of bans on same-sex marriage across the country. NPR legal affairs correspondent Nina Totenberg joins us in the studio. And, Nina, just to start, remind us quickly how this case actually came to be.

NINA TOTENBERG, BYLINE: Well, in 2008, California voters narrowly adopted a referendum that reinstituted a ban on gay marriage and put it in the state Constitution. Now, that referendum is before the U.S. Supreme Court, and the Obama administration is urging that the state ban on gay marriage be struck down as a denial of equal protection under the law. But while the brief uses lots of expansive language about the right to marry, the administration does not urge the Supreme Court to go much farther.

Instead, it asks the court to focus on the particular circumstances presented by California law rather than addressing the issue as it's presented in lots of other states.

CORNISH: So parse that out. What's so special about the California law?

TOTENBERG: Well, California and seven other states grant gay couples all the rights that are granted to heterosexual couples, except the right to marry. They can raise children with the same rights and responsibilities. They can adopt children. They can have foster children, provide foster homes. They have the right to make medical decisions for a partner, et cetera. But as the brief puts it, Proposition 8, the California referendum, forbids committed same-sex couples from solemnizing their union in marriage and instead relegates them to a legal status - domestic partnership - that is distinct from marriage.

Therefore, as the brief puts it, California denies to same-sex couples the right guaranteed in the Constitution that all persons similarly situated be treated alike.

CORNISH: So let's say the court actually agreed with the position taken in this brief. Would that mean that other state laws that also grant the same rights to same-sex couples, civil union states, that those seven state bans would also fall?

TOTENBERG: Yes. If the court were to take this position, those laws would also fall.

CORNISH: And remind us, which are those seven states?

TOTENBERG: Hawaii, Delaware, Illinois, Nevada, New Jersey, Oregon and Rhode island, and some of these states are already moving to legalize same-sex marriage.

CORNISH: Now, what about the other states where same-sex marriage is banned? I think there are more than 30 of them.

TOTENBERG: The administration is basically telling the court it can wait to deal with those states, that it simply doesn't have to address the issue yet in those states, though the strong implication is that some day the court will have to deal with those states too.

CORNISH: So why wait?

TOTENBERG: It's not just a legal question but a political one. And if everyone can kick the can down the road a bit, lots more states probably will do this on their own, making it a lot easier for the United States Supreme Court to strike down the laws in the remaining states. You know, when you talk to some gay rights activists, they think they'll have a lot better chance of a clear and total victory in a few years when a lot more states will have made same-sex marriage legal.

This is an issue that's changing faster than anyone can remember in a similar cultural phenomenon. It's like a snowball gathering speed very quickly. It's nothing akin to interracial marriage. We didn't - the Supreme Court didn't rule on interracial marriage until 1967, and there were still 16 states that made interracial marriage a crime in those states when the Supreme Court struck it down.

CORNISH: That's NPR's legal affairs correspondent Nina Totenberg. Nina, thank you for explaining it.

TOTENBERG: Thanks, Audie. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Over two decades of journalism, Audie Cornish has become a recognized and trusted voice on the airwaves as co-host of NPR's flagship news program, All Things Considered.