President Barack Obama could ask his Solicitor General Donald Verrilli to take a stand on behalf of a national approach to same-sex marriage in a pair of cases to be argued before the Supreme Court in March, says The New York Times
Obama himself has acknowledged the evolution of his thinking on the issue — before entering the White House, the president opposed gay marriage but later said he has no objection to it — and the Times suggested that last month’s Inaugural Address may have signaled a further shift in his view.
Obama has in the past maintained that the legality of same-sex marriage should be decided by individual states rather than the federal government.
Speaking to ABC News’ Robin Roberts in May last year, he said, “I think it is a mistake to try to make what has traditionally been a state issue into a national issue.”
But in his inaugural speech, Obama said, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”
Should he come down on the side of federalizing same-sex marriage laws, it could affect the Justice Department’s position in front of the Supreme Court next month. One of the two cases, United States v. Windsor, challenges the constitutionality of the 1996 Defense of Marriage Act, which defines marriage as the union of a man and a woman with respect to federal benefits.
Asked by Roberts whether he can ask the DOJ to join in the litigation in fighting states that are banning same-sex marriage, Obama said, “My Justice Department has already said that it is not gonna defend the Defense Against Marriage Act. That we consider it a violation of equal protection clause. And I agree with them on that.”
The president did not, however, address the other case, Hollingsworth v. Perry, which is being heard the day before the Windsor arguments. It is a challenge to Proposition 8, a voter initiative that banned same-sex marriage in California.
The federal government does not have to file a brief or take a public stance on the issue, notes the Times. It did not do so in Loving v. Virginia in 1967, the case in which the Supreme Court struck down bans on interracial marriage, or in Lawrence v. Texas, which in 2003 struck down state laws making gay sex a crime.
But according to the Times, Theodore Olson, who was solicitor general at the time of the Lawrence hearing and is now one of the lawyers arguing against Proposition 8, met Verrilli last month to try to convince him not to sit the case out. On January 18, Olson and his colleague, David Boies, along with lawyers from the San Francisco city attorney’s office reportedly urged Verrilli to weigh in on their side.
The Solicitor General has considerable clout with the Supreme Court and is often referred to as the “tenth justice.”
Verrilli has until the end of this month to file a brief in the California case.
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