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  • Sasha Issenberg

February 21, 2013: Barack Obama plots Supreme Court strategy


President Barack Obama and his top legal advisers set a strategy for the administration in two marriage-related cases before the Supreme Court.

The U.S. Supreme Court was scheduled to hear two separate appeals addressing different aspects of the debate over same-sex marriage. United States v. Windsor challenged the Defense of Marriage Act, passed by Congress and signed into law by President Bill Clinton in 1996, for discriminating against couples legally married in their home states but denied federal benefits. Hollingsworth v. Perry challenged an amendment to California’s constitution that banned same-sex marriage, enacted by voters in 2008 as Proposition 8, as a violation of federal equal-protection guarantees.

Obama had long opposed the Defense of Marriage Act as a political matter, and eventually threw his administration’s legal weight against it, too, by having Attorney General Eric Holder refuse to defend existing law and then backing the plaintiffs’ challenging it in court. That eased Obama’s political shift towards support for the right of same-sex couples to marry. But the former constitutional-law professor did not say he believed it ought to be the law of the land, instead embracing a federalist rationale that backed the authority of states to use their own political or legal institutions — including presumably California’s process to amend its constitution via ballot initiative — to define marriage as they saw fit. That put him squarely at odds with both the reasoning and objectives of the Hollingsworth v. Perry lawsuit, which invited the Supreme Court to not only knock down the Proposition 8 amendment but approximately three dozen similar state provisions nationwide.

But when the Supreme Court announced it would hear the Windsor and Perry appeals on consecutive days, it forced the two disparate cases into what ACLU gay-rights litigator Matt Coles called a “shotgun marriage.” If Solicitor General Don Verrilli went before the justices to back the Windsor plaintiffs, he was likely to be asked his views on Perry, and a refusal to answer would be read as disapproval. “In other words, neutrality is not an option,” says then-White House counsel Kathy Ruemmler, the White House counsel. “Staying out is not being neutral. Staying out is actually putting your thumb on the scale.”

One week before the February 28 deadline to file amicus briefs, Verrilli arrived in the Oval Office with Ruemmler and Holder. It was rare for the Justice Department to bring the head of the executive branch into conversations about when and how to file amicus briefs, but Obama had been unusually involved in earlier deliberations over his government’s role in the DOMA cases — and the lawyers knew their legal position and the president’s political stance could not be easily disentangled. Verrilli began by presenting the options around an amicus brief in Perry, pointing out the ways in which legal strategies around the two cases would intersect.

Obama relished the conversation that the lawyers brought to him. He eased into a moot-court exercise, mimicking what adversarial justices like Antonin Scalia might ask the solicitor general, and then reflected on the lessons of the civil-rights movement. Once Obama quoted Martin Luther King, Jr. Verrilli sensed that the president was inclined towards some action, out of fear that its silence would be understood as disapproval of the Perry plaintiffs’ quest. But he also was not ready to put his weight behind any argument that would override local policies set by voters, legislators and judges.

Obama was receptive to a compromise position that the attorneys believed would allow him to balance his deference to federalism with full respect for same-sex couples seeking marriage rights. But he knew that would be a political act, not merely a legal one. “We can’t just file a brief,” he told his visitors. “I'm going to have to go out and say something to the press.”


The Engagement:
America's Quarter-Century
Struggle Over Same-Sex Marriage

​By Sasha Issenberg

The riveting story of the battles over gay marriage
in the United States – the most important
civil-rights breakthrough of the new millennium.
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