Richard Wolf and David Jackson, USA TODAY
WASHINGTON - The Obama administration will endorse same-sex marriage Thursday by telling the Supreme Court that California should not be permitted to ban gays and lesbians from tying the knot.
The highly anticipated legal brief was expected later in the day, just hours before the deadline, the Associated Press reported.
The Justice Department is likely to argue that gay and lesbian couples have the same right to marry as heterosexuals. It's not clear whether the brief will apply to 37 other states that ban gay marriage or just to California.
The court filing will complete President Obama's self-described evolution on gay marriage and puts his administration squarely on the side of gay rights groups and the nine states where same-sex marriage is legal.
The president opposed California's ban, Proposition 8, during his 2008 campaign but refused to endorse gay marriage. He made that endorsement during last year's campaign but said the issue should be decided by the states.
Then, in evocative language in this year's inaugural address, Obama equated gay rights to past battles on behalf of women and African Americans by mentioning Stonewall, the New York City bar that was the site of 1969's historic gay rights riots.
"Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law," Obama said. "For if we are truly created equal, then surely the love we commit to one another must be equal as well."
The high court has reserved two days in late March to consider the California ban on gay marriage and the Defense of Marriage Act, which denies federal benefits to legally married same-sex couples. Both have been declared unconstitutional by lower courts, decisions which are being challenged by gay-marriage opponents.
Proposition 8 was approved by California voters in November 2008 to block a state Supreme Court decision legalizing same-sex marriage. Ever since, gay couples have been blocked from marrying in the nation's most populous state. A final ruling overturning the ban would open the floodgates to thousands of new same-sex marriages there.
What effect a court ruling striking down Proposition 8 would have on other states is not clear. The justices could rule narrowly, as a federal appeals court did, holding only that voters cannot take away a right previously enjoyed, however briefly, by Californians. But a more sweeping decision declaring marriage rights for gays and lesbians would endanger all state bans.
The Defense of Marriage Act (DOMA) was passed by Congress and signed by President Clinton in 1996 as a response to a Hawaii Supreme Court ruling that questioned the denial of a marriage license to a same-sex couple. The federal law has blocked legally married couples from receiving federal benefits in Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington and the District of Columbia.
The administration is leading the effort to overturn DOMA in the case of Edith Windsor, an 83-year-old New York widow who was forced to pay hundreds of thousands of dollars in estate taxes when her lesbian spouse died in 2009. Had she been married to a man, she would have faced no inheritance tax.
The new filing is more significant, however, because the administration did not have to get involved at all. Two same-sex couples are contesting Proposition 8 along with the state of California, while organizations that promoted the 2008 voter initiative are defending it.
In the Windsor case, the Justice Department's brief argues that gays and lesbians have been subjected to a long history of discrimination, and it refers specifically to the California marriage ban as an example.
On the subject of states' rights vs. the Constitution, its brief to the Supreme Court states: "Deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law."
Polls have been shifting toward approval of gay marriage. In a December USA TODAY survey, 53% of Americans said same-sex couples deserve the same marriage rights as heterosexual couples, up from 40% in 2009.
California's ban has attracted 37 "friend of the court" briefs, mostly from conservative and religious groups. Opponents of the ban have until today to file their briefs, and until Friday in the Defense of Marriage Act case. They were coming in from a variety of groups on the political left and right:
Scores of major companies, including Apple, Cisco, Facebook, Levi Strauss, Verizon and Xerox, argue in the California case that marriage equality "is a business imperative." Others, including Amazon, Citigroup, Google and Starbucks, say that DOMA forces them to discriminate against their own employees.
More than 100 Republicans and conservatives signed a brief organized by Ken Mehlman, former chairman of the Republican National Committee and head of President George W. Bush's 2004 re-election campaign.
A coalition of religious organizations representing Episcopal, Lutheran, Methodist, Quaker, Presbyterian and Jewish faiths endorsed what they called "civil" marriage equality, which they said does not impinge on religious beliefs.
The liberal Constitutional Accountability Center joined with the libertarian Cato Institute on a brief, arguing that marriage cannot be denied "for invidious or arbitrary reasons," Cato's Ilya Shapiro said.
Two National Football League players - Brendon Ayanbadejo of the Super Bowl champion Baltimore Ravens and Chris Kluwe of the Minnesota Vikings - filed a brief because, they said, sports figures can help shape public opinion and urge "societal progress."