Obama’s Shifts May Affect U.S. Legal Plan on Gay Marriage

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Published: February 4, 2013 - New York Times

WASHINGTON — The practice of law would be much more pleasant, many lawyers will tell you over a second Scotch, if it did not require clients. It is one thing to construct an airtight legal argument and quite another to deal with the demands of inconstant human beings.

Consider Solicitor General Donald B. Verrilli Jr.’s most prominent client, President Obama. In May, in announcing his support for same-sex marriage, Mr. Obama said the issue should be decided state by state. In his Inaugural Address last month, Mr. Obama seemed to make a case for a more national approach.

The timing was awkward. Mr. Verrilli is in the midst of considering what to tell the Supreme Court in a pair of momentous same-sex marriage cases to be argued in March. Just days before the inauguration, he met with lawyers challenging California’s ban on same-sex marriage, who urged him to weigh in on their side. He was noncommittal, but his client’s public marching orders until then had suggested that he should sit that one out.

Here is what Mr. Obama told Robin Roberts of ABC News in May: “What you’re seeing is, I think, states working through this issue in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is going be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

That reasoning fits tolerably well with the Justice Department’s position in one of the two cases before the Supreme Court, United States v. Windsor, No. 12-307. That case is a challenge to the constitutionality of the federal Defense of Marriage Act, a 1996 law that defined marriage as the union of a man and a woman in connection with federal benefits. The Defense of Marriage Act, Mr. Obama explained in May, “tried to federalize what has historically been state law.”

Mr. Verrilli will presumably make much the same point on March 27, when the Supreme Court hears arguments in the Windsor case.

But there is a second case, and there Mr. Verrilli faces tough choices. On March 26, the day before the argument about the 1996 law, the justices will hear Hollingsworth v. Perry, No. 12-144. It seeks to overturn Proposition 8, a voter initiative that banned same-sex marriage in California.

If marriage is a matter for the states, as Mr. Obama announced in May, you might think that California should be permitted to prohibit same-sex marriage.

The federal government is not a party to the California case, and it is not required to file a brief or to take a public position. Ms. Roberts asked Mr. Obama a direct question in May about whether he had given his lawyers instructions about what to do: “Can you ask your Justice Department to join in the litigation in fighting states that are banning same-sex marriage?”

Mr. Obama changed the subject.

All of this might have allowed Mr. Verrilli to concentrate on the case concerning the federal law and stay quiet in the California case. There is a precedent for this: the federal government took no position in 1967 in Loving v. Virginia, the case in which the Supreme Court struck down bans on interracial marriage. Nor did it weigh in on the last major gay rights case, Lawrence v. Texas, which in 2003 struck down state laws making gay sex a crime.

The solicitor general in 2003 was Theodore B. Olson. He is now in private practice and is one of the lawyers challenging the California ban on same-sex marriage. On Jan. 18, he and his colleague David Boies, along with lawyers from the San Francisco city attorney’s office, met with Mr. Verrilli to urge him to take a stand in the California case. Defenders of Proposition 8 made the opposite pitch a few days later.

Mr. Verrilli was noncommittal, but there is now reason to think that Mr. Olson will prevail in persuading Mr. Verrilli to ignore the precedent Mr. Olson had set. That is largely because Mr. Obama’s thinking on same-sex marriage continues to evolve.

In his Inaugural Address last month, Mr. Obama was no longer talking about leaving the issue to the states.

“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said, “for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

Mr. Verrilli has until the end of the month to file a brief in the California case. Paul D. Clement, a former solicitor general who represents House Republicans defending the 1996 federal law, said he detected some paradoxes in Mr. Verrilli’s predicament.

“It will be interesting in the end,” Mr. Clement said dryly at a Georgetown University Law Center forum last week, “if the litigation position of the Justice Department and the president’s position kind of realign.”

Mr. Clement said the solicitor general’s position always had weight at the Supreme Court. But he added that it may be less consequential in the California case than in some earlier ones, given the administration’s general, if nuanced, support for gay rights.

Thomas C. Goldstein, the publisher of Scotusblog and a lawyer who argues frequently before the Supreme Court, said the justices were not the only relevant audience for a brief from the Obama administration’s top appellate lawyer.

“Part of what is going on in the Inaugural Address and part of what would happen in a brief like that is a statement of what’s morally right and wrong,” he said. “It could matter to Americans much more than it matters to the Supreme Court.”