By Joan Biskupic, Reuters
WASHINGTON — On separate occasions in recent days, lawyers on opposite sides of a U.S. Supreme Court fight over same-sex marriage took an elevator to the fifth floor of the Department of Justice, entered a large conference room and made a pitch to Solicitor General Donald Verrilli and other top Obama administration lawyers. Each side wants the administration’s support in a late-March showdown on the fundamental rights of gay men and lesbians. On Jan. 18, Theodore Olson and David Boies, the well-known duo representing gay couples challenging California’s ban on same-sex marriage, asked the administration to back their claim of a constitutional right to such unions nationwide. On Thursday, attorney Charles Cooper, who has long represented defenders of the ban known as Proposition 8, asked the government to stay out of the case. These advocates and others in the dispute over same-sex marriage joined a common but little-known ritual of Supreme Court litigation. Parties seeking outside “friend of the court” briefs they hope will sway the court’s nine justices often try to get the weight of the federal government behind them. Justice Department officials regularly hear out both sides, with such meetings concerning a couple dozen cases each court term.
Lawyers who attended the private sessions on gay marriage said the government attorneys, while nodding at some points made by both sides, did not tip their hand. In these sessions, which have some attributes of an informal courtroom argument, officials do not make up their minds on the spot. It might be weeks before a party knows whether the valued government brief, with its distinctive gray cover, will be filed on its behalf. Deadlines Approach Any outside group that sides with defenders of Proposition 8 must submit its amicus curiae, or “friend of the court,” brief by Tuesday under Supreme Court deadlines. Gay rights groups and others backing the challengers have until Feb. 28. While President Barack Obama has vigorously endorsed gay marriage, as recently as in his second inaugural speech last Monday, he also has suggested that the federal government should not take the lead. White House Press Secretary Jay Carney said the day after the inauguration ceremony that while Obama’s “personal view” favors same-sex marriage, he “believes that it’s an issue that should be addressed by the states.” The administration has never taken a position on Proposition 8, which California voters adopted on Nov. 4, 2008, the day Obama was first elected president. Under laws passed since 2004, nine states and the District of Columbia allow same-sex couples to wed.
Presidents generally do not become involved in a solicitor general filing to the Supreme Court. But in this politically charged dilemma, lawyers on both sides say it is all but certain that Obama, a Harvard Law School graduate who was once a constitutional law professor, will play a big role in directing the administration’s stance. Verrilli ran the meetings around a large rectangular table in a plain conference room near his ornate office. Lawyers who took part would not speak publicly because the meetings are confidential but they said the Jan. 18 session for the Olson-Boies team and Thursday’s session for the Cooper group lasted an hour each. About 20 government lawyers, mainly from the Justice Department, attended. The advocates’ assertions were at times passionate and animated. For their part, government attorneys were methodical in their questioning, focusing on legal analyses. Opposing Views