CHIEF JUSTICE ROBERTS: I don’t want to — I 5 want you to get back to Justice Alito’s other points, 6 but is it the position of the United States that 7 same-sex marriage is not required throughout the 8 country?
GENERAL VERRILLI: We are not — we are not 10 taking the position that it is required throughout the 11 country. We think that that ought to be left open for a future adjudication in other States that don’t have the situation California has.
And, for those of you who think Verrilli is a stiff, he exercised perfect timing here.
JUSTICE SCALIA: So your — your position is 15 only if a State allows civil unions does it become 16 unconstitutional to forbid same-sex marriage, right?
Verrilli: I — I see my red light is on.
There was applause, but it was not recorded in the transcript. Roberts, unlike Rehnquist gave the General more time.
CHIEF JUSTICE ROBERTS: Well, you can go on.
GENERAL VERRILLI: Thank you.
This reminds me of the line in the ACA case where he said “Lucky Me” after the Chief gave him more time.
His answer also reminds me of his response to Alito’s question about a limiting principle. Make no mistake, this rambling answer is exactly what he planned on saying.
Our position is — I would just take out a red pen and take the word “only” out of that sentence. When that is true, then the Equal Protection Clause 24 forbids the exclusion of same-sex marriage, and it’s an 25 open question otherwise.
Roberts wasn’t buying this position:
CHIEF JUSTICE ROBERTS: But you are willing to wait in the rest of the country. You saying it’s got to happen right now in California, but you don’t even have a position about whether it’s required in the rest of the country.
GENERAL VERRILLI: If — with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect —
CHIEF JUSTICE ROBERTS: So it’s got to happen right away in those States where same-sex couples have every legal right that married couples do.
GENERAL VERRILLI: Well, we think —
CHIEF JUSTICE ROBERTS: But you can wait in States where they have fewer legal rights.