The Washington Post
February 20, 2013

As you regulars know, I’m hoping that the Obama Justice Department will file a legal brief related to the Supreme Court’s pending hearing of the case involving Proposition 8, one detailing the administration’s view that Prop 8 is unconstitutional. This would send a strong message that the culture is changing, and could help lead to a sweeping ruling from the Court, one that will effectively put state laws prohibiting gay marriage on the path to extinction. Time is running out: Briefs are due in the case on February 28th. The Justice Department is not saying what it will do, which has some gay rights advocates a bit nervous. To understand why this is such a big deal, check out the piece gay advocate Richard Socarides has written for the New Yorker. As he notes, there are three possible responses for the Justice Department here, presuming it files a brief at all. The first two are limited responses that would essentially mean gay marriage returns to California but would not have meaningful national implications. Socarides expects the third, much broader response, in which the government would make an aggressive case in favor of marriage equality, by arguing (as it has in the case of the Defense of Marriage Act) that sexual orientation classifications must be subjected to “heightened scrutiny.”