In Defense of the Obama Administration’s Prop 8 Brief

The Obama administration filed a brief arguing that Proposition 8 is unconstitutional. Bmaz is very upset, calling it “cowardly,” “timid,” and a “states rights” argument. (I find the latter charge particularly amusing; say what you will about Obama, at least unlike bmaz he was never sympathetic to neoconfederate arguments against the constitutionality of the PPACA.) Anyway, this is really overwrought:

• It’s not accurate to say that the Obama administration is merely making a Romer-style argument. As you can see if you read the brief, the government explicitly calls for classifications based on sexual orientation to be subject to heightened scrutiny.   This goes beyond what Romer (explicitly) held,  and to call that a cowardly or “states’ rights” argument is really absurd.  Bans on same-sex marriage would have virtually no chance of surviving heightened scrutiny, and hence would almost certainly lead to a national right to same-sex marriage whether or not the decision was immediately limited to the California case.
• It is true that, having made a case that sexual orientation should be subject to heightened scrutiny, it then limits the application of this principle to the case at hand.   This is just intelligent, responsible lawyering.    It is far from obvious that the court’s median vote is ready to declare a national right to same-sex marriage.   The most crucial goal for this litigation is to ensure that the Court doesn’t uphold Prop 8 and create a disastrous Bowers like-precedent.   The brief reflects this perfectly; the heightened scrutiny standard would allow Kennedy to create a national right to same-sex marriage if he wants to, but it’s important to emphasize that he can write a narrow opinion that would strike down Prop 8 while leaving the question of other state bans open.  Portraying this as an all-or-nothing proposition would be foolish, since there’s a reasonable probability that Kennedy would choose “nothing.”  The Solicitor General’s brief isn’t an act of narcissistic self-expression with liberal bloggers being the audience; the SG’s job is to make arguments that have the best chance of appealing to the median vote on the Supreme Court.