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Solicitor General granted time to argue against Prop 8 at Supreme Court

Marriage equality Marriage Equality Trials Prop 8 Prop 8 trial

By Scottie Thomaston

Solicitor General Donald B. Verrilli, Jr.

The Supreme Court has granted a request from the Solicitor General for time to argue in support of the same-sex couples who are plaintiffs in Hollingsworth v. Perry, the Prop 8 case.

The Solicitor General had filed a brief in the case on behalf of the United States. Their argument rests on California’s situation: the state treats gays and lesbians the same in most respects (including parenting and allowing the filing of joint taxes) but Prop 8 denies gay and lesbian couples alone the designation of marriage. In the administration’s view, the Court can apply a heightened level of judicial scrutiny, since the law classifies people in the basis of sexual orientation, which is not a valid basis on which to make laws; then, the Court can hold that under a heightened level of judicial scrutiny, denial of the label “marriage” violates equal protection when a state already treats gays and lesbians equal to straight people. The administration suggests this view instead of an “all 50 states” decision, as a pragmatic step. But if the Court decides to apply heightened scrutiny to laws impacting gays and lesbians, it isn’t clear that any ban would survive review.

After filing the brief, the Solicitor General filed a motion with the Court requesting ten minutes of time to make their case that Prop 8 violates the 14th Amendment’s Equal Protection Clause. The plaintiffs’ lawyers, Ted Olson and David Boies, agreed to give up ten minutes of their time. A request from the government for time to argue in a case in which they’ve filed an amicus curiae (“friend of the court”) brief is typical and is usually granted.

The Solicitor General, of course, hasn’t been involved in the Prop 8 case at any stage of the litigation. In 2008, then-candidate Barack Obama said that he opposed the amendment, but also believed marriage is only the union of a man and a woman. During the Prop 8 campaign, his words were used in Yes on 8 ads to persuade voters to pass the initiative. But over time the president’s views changed and last year he came around to personally supporting marriage equality. The Solicitor General’s brief, which was signed off on by the president himself, was the first time the president (or any President of the United States) had ever suggested there is a constitutional right for same-sex couples to marry.

The Solicitor General will get to make his case on March 26, ten years to the day the Court heard arguments in Lawrence v. Texas, a decision which ultimately decriminalized same-sex intimacy.

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