Lawyers often opine: the practice of law would be far more pleasant if clients were not involved. It is one thing to present an articulate legal argument and quite another to capitulate to the demands of illogical human beings.
Case in point, Solicitor General Donald Verrilli Jr’s most famous client—President Barack Obama. By announcing his support for same-sex marriage in May, President Obama urged the states to decide on the issue of altering their marriage laws. In Obama’s Inaugural Address last month, the President made a case for a broader approach to legalizing gay marriage.
The timing of the shift was awkward as Mr. Verrilli is in the midst presenting to the U.S. Supreme Court in a pair of ground-breaking same-sex marriage cases to be argued in late March.
President Obama told ABC News the following in May: “What you are beginning to see are states working through these issues in fits and starts. Communities are arriving at different conclusions, at different times. And that’s a healthy process and a healthy debate and I believe that is going to be decided by the states.”
This logic fits well with the Justice Department’s position in one of the two cases before the United States Supreme Court (U.S. vs. Windsor). This case challenges the Defense of Marriage Act—a mandate that defined marriage as a union only between man and a woman in connection with receiving federal benefits. President Obama claims that the Defense of Marriage Act tries to federalize what has historically been a state law.
Verrilli will make a similar point in March when the U.S. Supreme Court hears arguments in the Windsor matter. That said, there is a second case where Verrilli will be faced with much tougher decisions. On the 26th of March—just a day before the Windsor case—the justices will hear Hollingsworth v. Perry, which seeks to overturn Proposition 8, an initiative that banned same-sex marriages in the state of California.
If marriage, as Obama stated in May, is a matter of the states, you may think that California should be allowed to prohibit same-sex marriages.
However, in his Inaugural Address last month, President Obama was no longer discussing leaving the issue to the states.
“Our journey is not finished until our gay brothers and sisters are treated like everyone else under the law,” he said, “for if we are truly equal, then surely the love we commit to one another must be equal.”
Placing the issue on a national level will shift Verrilli’s strategy in the upcoming hearings—the Solicitor General has until the end of February to file a brief in the Proposition case.
