The next day Obama had a news conference explaining the decision to file a brief in the case: "What we've said is that same-sex couples are a group, a class that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it's doing it, and if the state doesn't have a good reason it should be struck down."
At the end of March, the Supreme Court heard arguments in both the Prop 8 and the DOMA cases.
Lawyer Charles J Cooper argued on behalf of supporters of Prop 8 and told the justices that Californians who voted in favor of the ballot initiative opted "in good faith" to preserve the traditional definition of marriage because they believe it continues to meaningfully serve important societal interests. Cooper said that the government has an interest in traditional marriage to encourage "responsible procreation."
Cooper pointed out that California has expansive domestic partnership laws that provide gays and lesbians with "comprehensive civil rights protections."
Justice Anthony Kennedy--whose vote could be pivotal--worried on one hand that sociological information on gay marriage is relatively new. "We have five years of information to weigh against 2,000 years of history or more," he said. But on the other hand he expressed concern for the children. "There are some 40,000 children in California," he said, "that live with same-sex parents, and they want their parents to have full recognition and full status."
After arguments the original sponsors of Prop 8 released a statement. "No amount of new-found political or legal firepower can replace the primary purpose of marriage, which is to increase the likelihood of children being raised by the mothers and fathers who brought them into this world. We are confident that the case we presented today will affirm that same-sex "marriage" is but a societal experiment that needs no special protection by or recognition from the United States Supreme Court," the statement said.
In the DOMA case, former Solicitor General Paul D. Clement--who was appointed by House Republicans to defend the law when the government declined to do so--reminded the court that DOMA had received broad support in both the House and the Senate when it passed in 1996. He said Congress acted in part out of a desire for uniformity so that the federal definition of marriage would remain consistent throughout the states.
"For purposes of federal law," Clement said, "it's much more rational ...for Congress to say we want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma."
In May, Rhode Island and Delaware became the 10th and 11th states to allow gay marriage in addition to the District of Columbia.
By the end of June, the Supreme Court will issue opinions in both the DOMA and Prop 8 cases. For some gay rights advocates the momentum will be hard to reverse no matter how the Supreme Court rules.
"As long as all who believe in justice stay with us in the work ahead, we will win marriage nationwide either in June with the Supreme Court ruling, or after a few more years of engagement when we go back before the court with even more states, still more public support, and perhaps a couple new justices," says Wolfson.
The court's ruling will come almost at the one year anniversary of the president's initial, personal, endorsement of gay marriage.