Durham Law Student, Jesse Bachir, explores a recent development in the current US Supreme Court case on same sex marriage. An earlier version of this post was published on Queer Human Rights and is posted here with permission and thanks.
This week, the US Supreme Court will be hearing two cases on the issue of same sex marriage. Today, it will be hearing Hollingsworth v Perry, a case deciding whether California’s Proposition 8, a State amendment to the Californian Constitution which states that only marriage between a man and a woman is valid or recognised in California, violates the Equal Protection Clause of the Fourteenth Amendment.
In advance of this hearing, Obama submitted an amicus brief with the Supreme Court asking them to the ban on equal marriage in the Prop 8 case. This move was a lot more monumental than most people realise – the President of the United States had intervened in judicial matters.
A lawyer for the Obama administration will appear before the Supreme Court today to make arguments in the Prop 8 case against the ban. The US Solicitor General is usually the lawyer who represents the federal government in the Supreme Court in cases to which the federal government is a party. A special relationship exists between the Solicitor General and the Supreme Court – certiorari petitions (applications asking for the Supreme Court to review government or legislative action under ‘judicial review’) made by the Solicitor General are far more frequently granted than applications made by other parties.
The US Solicitor General asked the Supreme Court to grant the federal government 10 minutes (oral arguments in the Supreme Court are typically scheduled to only last 1 hour) to present the government’s views as an amicus (‘friend of the court’) party. The federal government is not a party to the case, nor has it previously been involved in the case – which makes the granting of the US Solicitor General’s application to appear before the Court a very interesting one.
The Court is likely to be seeking the opinion of the government and will be likely to bring up the President’s amicus brief which he submitted a few week ago. But why is this so strange?
The US Constitution is based on the idea of the separation of powers – but here we have a problem. The US Solicitor General has been granted 10 minutes to give the opinion of the government in the Prop 8 Case. But, the federal government is not a party in the case; it lacks any relevant standing (‘interest in the case’) because Prop 8 is a state law, not a federal law. Prop 8 does not concern any federal body.
While it is excellent that the Obama administration has voiced its opinion on marriage equality and even submitted an amicus brief, this act seems to potentially violate principles of the different functions of the different branches of the government. The courts are supposed to be independent, but the involvement of the federal government in this case raises questions about the independence of the judiciary. The government giving its opinions about the Prop 8 case, when it is not a party to the case and has no interest in the case, concerns me as this could set a potentially bad precedent.
Imagine that rather than Obama, Romney had been elected and that he did not support marriage equality. Imagine that in the same fashion as Obama, Romney filed an amicus brief and asked to appear before the Court in order to argue against equal marriage. The executive branch of the government has substantial power, and the opinion of the President and the executive branch is something which the court will give considerable weight. If Romney had taken these actions, we clearly would not be happy with what he was doing.
Obama is acting in the exact same way, but arguing for marriage equality and we don’t seem to be saying too much because we like what he’s arguing for. But, it’s always important to remember that in law it’s not just about what you’re arguing, it’s how you’re doing it and reaching that goal. While I appreciate the Obama administration’s involvement on marriage equality, I’m not very comfortable with the precedent that this sets. It could be used against the LGBTQ-GSM (and other minorities) in the future by a very different government. This is a dangerous tactic and we should all be wary of it.