The United States, a Coy Friend of the Court

by Matthew J. Franck

Arguing as a friend of the Court, U.S. Solicitor General Donald Verrilli took the position that because California has gone so far in the direction of marriage for same-sex couples–with civil union rights, adoption rights, and so on–that it must go the rest of the way and grant such couples a full right to marry.  Several justices were skeptical of the proposition that the more a state has done “for” same-sex couples, the more it is constitutionally obliged to do, whereas a state that has granted none of the incidents of marriage to same-sex couples has no similar obligation.  Then Justice Scalia homed in:

JUSTICE SCALIA: So your–your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?

GENERAL VERRILLI: I–I see my red light is on.

CHIEF JUSTICE ROBERTS: Well, you can go on.

GENERAL VERRILLI: Thank you.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 forbids the exclusion of same-sex marriage, and it’s an open question otherwise.

So the official position of the United States, in the Supreme Court anyway–notwithstanding the blandishments of the president of the United States–is that same-sex marriage is a constitutional right in those states that have civil unions, but that it is an “open question” whether this is so anywhere else.  It might or might not be a constitutional right in, say, Mississippi, but it certainly is one in California!  With every allowance for smart lawyers confining themselves to the circumstances of the case at hand, this is much too coy.  Of course the view of the Obama administration is that the right is universal, and the aim is to see that it becomes so.  But it is a sign of the administration’s uncertain footing that Verrilli found himself backed into this statement.