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Ruth Marcus: Translating words into deeds

BY RUTH MARCUS Published: February 20, 2013

The justices can decide the Prop 8 case without answering the ultimate question, either by deciding that those defending the measure lack legal standing or by focusing on the unusual facts of the case, that same-sex couples in California enjoyed the right to marriage before it was taken away. Indeed, in the fast-changing debate, a narrower ruling would probably be the wiser course.

The administration isn't required to intervene in the California case. It has its own gay rights case at the Supreme Court this term, in which the administration, wisely, is arguing against the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriage even in states where it is legal.

In the DOMA litigation, Obama directed the Justice Department to stop defending the law after concluding that classifications based on sexual orientation are subject to “heightened scrutiny.” Under this standard of review, laws that discriminate against gays and lesbians must be, in the court's words, “substantially related to an important government objective.”

Prop 8 defenders argue that denying marriage to same-sex couples “furthers society's interest in responsible procreation and child-rearing,” but they have a hard time explaining how. The administration has argued that the procreation rationale doesn't suffice to justify DOMA; would it say the same of Prop 8?

Hearing from the administration is especially important because the Prop 8 defenders, in their brief to the court, cite the president's comments about the “healthy debate” occurring in the states in defense of letting the law stand.

And especially given the president's words last month: “If we are truly created equal, then surely the love we commit to one another must be equal as well.”

A president who speaks so eloquently at his inaugural cannot allow his administration to remain silent before the court, where words are translated into reality.