WASHINGTON — The Obama administration will throw its support behind a broad claim for marriage equality, urging the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage there, according to an administration official.
The federal government is not a party to the case, Hollingsworth v. Perry, No. 12-144, and was not required to take a position in it. But the lawyers who filed the challenge, Theodore B. Olson and David Boies, along with gay rights groups, lobbied hard for the brief, saying the administration could not stay silent on the issue.
The broad outlines of the administration’s position were not a surprise, given that it filed a brief last week in a same-sex marriage case in which it is a party, United States v. Windsor, No. 12-307. But that case presents only the narrower question of the constitutionality of part of the federal Defense of Marriage Act of 1996, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and regulations.
The Supreme Court’s ruling in the Defense of Marriage Act case will at most decide whether the federal government can discriminate against same-sex couples even if they married in states that allow such unions. Nine states and the District of Columbia allow same-sex marriage.
The case from California presents the broader question of whether there is a constitutional right to same-sex marriage in the states that do not allow it, which is why the new brief is significant. It is hardly certain, however, that the Supreme Court will end up deciding that broad question. The court may well avoid the issue on technical grounds or rule in a way that applies only to California.