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White House Brief Foreshadows Supreme Court Arguments on Gay Marriage

iStockphoto/Thinkstock(WASHINGTON) -- The White House has asked the Supreme Court to strike down a main provision of the Defense of Marriage Act, but in the legal paper filed with the judiciary it may have signaled a wider push for same-sex marriage as a constitutional right on the horizon.

The Justice Department issued an amicus brief Friday urging the court to repeal Section 3 of DOMA when it hears a challenge to the act late next month. The portion bars the federal government from recognizing same sex marriages for health benefits, income tax purposes, and other issues.`

In 2011, President Obama announced the executive branch would cease upholding the 1996 law, although it remained on the books. Given that the Obama administration has been named a party to the case, the filing with the court does not come as a surprise, yet the equal protection issues covered in United States v. Windsor are relatively narrow in scope.

Instead, court watchers have been waiting to see whether the president would weigh in on a separate case involving gay marriage: California’s Proposition 8. The administration has until next week to decide whether to join other parties in challenging the ballot-approved state law, later overturned, that defined marriage as between a man and a woman. Friday’s brief could serve as hat-tip that the Justice Department is preparing for such a move.

Any ruling regarding Prop 8 would have sweeping ramifications over a much broader issue than DOMA: Whether the U.S. Constitution guarantees a fundamental right to gay marriage.

Solicitor General Donald B. Verrilli Jr. is not required to file a so-called “friend of the court” brief in that, but sources say the administration is considering the possibility at the highest levels.

In an interview Wednesday with San Francisco’s ABC station, KGO-TV, Obama said his administration had yet to reach a decision.

“I have to make sure I’m not interjecting myself too much into this process, particularly when we’re not party to the case,” he told KGO-TV. “I can tell you, though, that obviously my personal view is that I think that same-sex couples should have the same rights and be treated like everybody else.”

Historically his administration has left such decisions to the states; the administration has not previously offered an official statement on Prop 8 because the federal government was not directly affected by it.

Although the California case and DOMA do not directly intertwine Friday’s brief does offer a window into the language likely to be employed by the Justice Department in Prop 8, should it become involved. The brief can be found at the well-established

“Gay and lesbian people are a minority group with limited political power,” reads the administration statement. “Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action.”

The Republican-controlled House of Representatives has also filed a brief urging that the law be upheld, arguing gay-rights issues would be better left to the democratic process.

“Gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history,” it says.

The House named itself a party to the case after the executive branch announced its decision to abandon the legislation.

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