Days before the 2008 election, then-candidate Barack Obama said California’s Proposition 8 was “unnecessary” and “not what America’s about.”

Now, some same-sex marriage advocates are hoping Obama’s Justice Department will make a similar argument in court. The federal government is not a party to the Proposition 8 litigation, which pits gay and lesbian couples against supporters of a state constitutional amendment banning same-sex marriage. But the Justice Department could weigh in as amicus curiae — either when the case arrives at the steps of the U.S. Supreme Court or, sooner, before the 9th U.S. Circuit Court of Appeals. Such a decision would typically be up to Acting Solicitor General Neal Katyal with input from across the federal government, including the White House.

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