Gay-Marriage Cases Pose Legal Tests for Administration

A report at the Wall Street Journal, "Gay-Marriage Legal Tests Loom":

President Barack Obama last week cast his support for same-sex marriage as a personal view on policy, not a constitutional imperative. But because the Supreme Court long has defined the right to marriage as a "fundamental freedom," legal analysts say his administration is sure to face pressure to weigh in on the marriage question when it reaches the Supreme Court.

That pressure could mount as early as this fall, if the challenge to California's Proposition 8, a voter-approved initiative that barred gay marriage, reaches the final stages.

If that happens, Mr. Obama "will surely be asked by advocates for LGBT [lesbian, gay, bisexual and transgender] rights to support a decision upholding a federal constitutional right to same-sex marriage, which would take it out of the hands of the states," said Theodore Olson, the Republican former solicitor general who has helped lead the challenge to the 2008 initiative restricting marriage to a man and a woman.

Mr. Obama said Wednesday that while he now believes same-sex couples should be able to marry, historically the definition of marriage "has not been a federal issue." He said he viewed the battles over same-sex marriage at the state level as a "healthy process."

Thirty states now ban same-sex marriage, while six states and the District of Columbia permit it. Two additional states have passed bills allowing gay-marriage, though it's possible they could be overturned by voter referendums.

Asked if he would request the Justice Department to join the legal fight against state laws banning same-sex marriage, the president said only that he had "helped to prompt" the department's decision to abandon its defense of the Defense of Marriage Act. That 1996 law bans federal recognition of state-authorized same-sex marriages.

"We consider that a violation of the equal protection clause," the president said.

That law and California's Proposition 8 are the two major gay-marriage issues working their way through federal courts.

Chuck Cooper, an attorney representing Proposition 8's backers, declined to comment on the legal implications of the president's remarks. The measure's sponsors have asked the full Ninth U.S. Circuit Court of Appeals to reconsider a February opinion that upheld a federal district judge's ruling striking down Proposition 8. Whatever happens in that circuit, the losers are expected to seek review from the U.S. Supreme Court.

That's an excellent summary, and there's lots more at the link.