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# Justice Department Mum on Prop 8 as Date with Supremes Looms
February 07 2013
Written by Jacob Combs.
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GAY RIGHTS - When Barack Obama gave marriage equality a prominent shout-out in his second inaugural address, Solicitor General Donald Verrilli, Jr. must have known his job had just gotten a little bit harder. As the government’s highest advocate before the Supreme Court, it falls to Verrilli to explain the Obama administration’s position on issues the court is considering. But right now, the administration’s position on equal marriage rights–and thus the constitutionality of Prop 8–doesn’t seem very clear at all.
At his inauguration, President 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.” At first, that sounds pretty straightforward: the Obama administration believes that same-sex couples should be able to marry just like opposite-sex couples.
But that poses a problem for Verrilli. The government’s position in the other gay rights case that the Supreme Court will hear this March–the *Windsor* challenge to the Defense of Marriage Act–is relatively straightforward: the federal government cannot refuse to recognize valid state marriages between same-sex couples. The case touches only on issues surrounding federal benefits for same-sex couples, not the central question of marriage equality itself.
But the Prop 8 case raises the much larger issue of whether state governments can limit marriage by law to only opposite-sex couples. The district court judge who struck Prop 8 down in 2010 said they could not; the Ninth Circuit, when it also declared Prop 8 unconstitutional in 2012, did so in a California-specific way that would leave other state laws intact.
Obama’s inaugural statement would seem to indicate that were Verrilli to file a brief in the Prop 8 case–which he is not required to do, since the federal government is not a party to the action–he should do so along the lines of the district court judgment invalidating Prop 8.
In mid-January, attorneys on both sides of the case met with Verrilli and other government lawyers to persuade him to weigh in their favor. One thing is clear: the proponents of Prop 8 were unsuccessful, since the deadline to file a brief in support of the law has passed without any word from the Justice Department.
Verrilli has until the end of February to file a brief against Prop 8. The federal government took no position in the *Loving v. Virginia* case, which struck down bans on interracial marriage, nor did it opine on the *Lawrence v. Texas* case, which invalidated bans on sodomy. In an intriguing twist, the solicitor general during *Lawrence* was Ted Olson, who is now one of the attorneys fighting Prop 8 and trying to convince Verrilli to file a brief arguing against it.
Adam Liptak, the Supreme Court reporter for the *New York Times*, [wrote](http://www.nytimes.com/2013/02/05/us/politics/solicitor-generals-predicament-on-gay-marriage.html?_r=1&) this week that “there is now reason to think that Mr. Olson will prevail in persuading Mr. Verrilli to ignore the precedent Mr. Olson had set … largely because Mr. Obama’s thinking on same-sex marriage continues to evolve.”
But Lyle Denniston, who writes for the court-watching website SCOTUSblog, thinks any action Verrilli will take will be measured. ”Verrilli, if he is prepared to give the government’s views on the merits of the California case,” Denniston [wrote](http://www.scotusblog.com/2013/02/proposition-8-will-verrilli-follow-dellingers-lead/) Tuesday, “would probably do so in response to the Ninth Circuit’s approach.”
Verrilli and the Obama administration could also avoid the question of marriage equality all together and file a brief arguing that the proponents of Prop 8 do not have standing to defend the law in court.
As Denniston points out, they could rely on the work of a previous solicitor general, Walter Dellinger, who [argued](http://www.bloomberglaw.com/public/document/Arizonans_for_Official_English_v_Arizona_520_US_43_117_S_Ct_1055_/1) in the 1997 case *Arizonans for Official English v. Arizona* that the proponents of an invalidated ballot measure could not defend it in court.
Regardless of Verrilli’s decision, it’s likely that we won’t know until close to or at the end of the month how the administration decides to proceed.
*(Jacob Combs writes at [prop8trialtracker.com](http://prop8trialtracker.com) where this report was first posted.)*
*CityWatch*
*Vol 11 Issue 12*
*Pub: Feb 8, 2013*
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