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?
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.