WASHINGTON — President Obama's choice to lead the FBI, James Comey, has taken a more aggressive stance than the president and Attorney General Eric Holder in pushing for marriage equality at the Supreme Court — a fact made more notable because Comey is a Republican.
With a White House official confirming this evening that Obama will announce he is nominating Jim Comey to serve as the next FBI director on Friday, and as the country waits for a Supreme Court ruling in the case challenging California's Proposition 8, the differing viewpoints serve as a reminder that it was only last May that Obama announced he even personally supported marriage between same-sex couples.
Comey, who served as Deputy Attorney General under President George W. Bush, joined Ken Mehlman and more than 125 other "social and political conservatives, moderates, and libertarians from diverse backgrounds" to urge the Supreme Court to strike down California's amendment banning same-sex couples from marrying on the grounds that marriage is a fundamental right and there is no legitimate reason to ban same-sex couples from exercising that right. Under that reasoning, all such bans would be unconstitutional.
The Obama administration avoided that issue, as well as the question of whether treating same-sex couples differently from opposite sex couples in marriage laws is ever constitutional. Instead, the Obama administration told the court:
The Court can resolve this case by focusing on the particular circumstances presented by California law and the recognition it gives to committed same-sex relationships, rather than addressing the equal protection issue under circumstances not present here.
In their brief, however, Comey and the other Republicans declared:
Proposition 8 ran afoul of our constitutional order by submitting to popular referendum a fundamental right that there is no legitimate, fact-based reason to deny to same-sex couples. This case accordingly presents one of the rare instances in which judicial intervention is necessary to prevent overreaching by the electorate. When fundamental liberties are at stake, personal "choices and assessments ... are not for the Government to make," and courts must step in to prevent any encroachment upon individual rights.
The Obama administration focused instead on the specifics of the California situation.
"California's extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8," the administration lawyers wrote, pressing this into what was referred to as the "eight-state solution" by observers. "Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples."
In other words, if the Obama administration has its way, California and seven other states — two of which already passed marriage equality — would get marriage equality once the Supreme Court opinion comes down. If Comey and Mehlman have their way, all 50 states would get marriage equality.