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Supreme Court Could Force President Obama's Hand On Gay Marriage

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By John Hollis
Special to the NNPA from The Atlanta Blackstar

The days of hedging his bets and standing along the sidelines while the issue of same-sex marriage plays out in America could soon be over for President Barack Obama.

The Supreme Court’s decision on Friday to hear two same-sex marriage cases this spring means the administration will be forced to take a stand on the hot-button issue that has elicited such a visceral reaction from every side.

Obama announced in May that his position had evolved to where he now favors same-sex marriage after previously having previously just supported just civil unions. The administration made clear last year that it would no longer defend the Defense of Marriage Act, the 1996 law that denies federal benefits to same-sex married couples.

But many mistakenly took his comments as a full embrace of same-sex marriage when that was never the case. The president was always very careful to say that believed it was an issue best left up to the states rather be decided at the federal level.

It was for that reason that the president and his attorney general, Eric Holder, were conspicuously quiet about federal district court judge’s ruling in 2010 that struck down a California ban on same-sex marriages from two years earlier as unconstitutional by finding a broad federal right to same-sex marriage.

In February, the U.S. Court of Appeals for the 9th Circuit also defined California’s Proposition 8 as unconstitutional, but on narrower grounds.

Now it’s up to the Supreme Court to hear the matter, meaning the president will likely be forced to choose sides and anger a large part of his base whatever decision he makes.

African-Americans are Obama’s most ardent supporters are overwhelmingly conservative on social issues, gay marriage especially. Those in California were strongly in favor of Proposition 8.

But the gay and lesbian community also played key roles in Obama’s re-election last month and will be looking for him to come through for them.

The irony, of course, is that Obama has always preferred a more conservative approach to the issue than even his staunches Republican critics. On one hand, fringe zealots like Rush Limbaugh and their right-wing brethren in Congress cringe at the idea of expanding government powers, but nonetheless clamor for a federal law that extends well into people’s private lives by banning same-sex marriages.

Obama reaffirmed his position on the issue just days before last month’s election.

“Historically, marriages have been defined at the state level,” he told MTV on Oct. 26 in response to an edgy question that asserted he’d staked out a “states’ rights” position on the issue. “Ultimately, you know, I believe that if we have that conversation at the state level, the evolution that’s taking place in this country will get us to a place where we are going to be recognizing everybody fairly.”

But the Supreme Court’s decision on Friday may have forced Obama’s hand quicker than he might have liked.

“There will be pressure for the Justice Department to weigh in on the Prop. 8 case,” Richard Socarides, a longtime gay rights activist and White House adviser to President Bill Clinton, told Politico.

Socarides said that when Obama “evolved” in the direction of support for gay marriage earlier this year, he and his aides seemed eager to let some time pass before confronting the question of whether it was a right every American should be guaranteed.

“I think this federalizes the issue much more quickly than the White House would have liked and may force them to take a position earlier than they would have liked,” Socarides said.

In the justices’ order Friday, they did not ask the administration to offer views on the Prop. 8 case. However, court watchers believe several of the justices could put the question of whether there is a federal right to gay-marriage directly to Solicitor General Donald Verrilli.

That’s even more likely if the DOMA case, in which the administration will be arguing, is heard by the court at about the same time as the California gay-marriage ban. The cases are expected to be scheduled for late March, though no dates have been announced.

“Given the stand that the president of the United States and the attorney general of the United States have made with respect to marriage equality, we would certainly hope that they would participate,” said Ted Olson, the solicitor general under President George W. Bush and the lawyer most likely to argue the pro-gay-marriage side when the justices hear the Prop. 8 case, during a conference call with reporters.

“I’m quite confident that if they did participate, they would support our position in this case, that the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”

Prop. 8 proponents didn’t echo the call for the Obama administration to weigh in, but did say that the only position it could take consistent with the president’s public statements would be to affirm the state of California’s right to ban gay marriage.

“President Obama has been clear that the states have the right to retain the traditional definition of marriage,” attorney Andrew Pugno told POLITICO via e-mail. “The Department of Justice should adhere to the president’s views.”

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