The Solicitor General and Same-Sex Marriage

February 4th, 2013

Adam Liptak has a great Sidebar column exploring whether the Solicitor General will file a brief in the Prop 8 case, where the Federal Government is not a party. Last week, I attended an event on the Supreme Court term at Georgetown Law Center. Adam (no doubt with this column in mind) asked the all-star panel if the SG would file a brief. Former Acting SG Neal Katyal said that the government only decides if it will file a brief at the last minute–suggesting that one may be written, but never submitted.

Paul Clement quipped that when he was in the SG’s Office, Ted Olson was in charge, and the government decided not to file a brief–presumably the brief would have been against gay rights.

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

Oh how times change.