WASHINGTON — When it comes to the question of whether the Supreme Court should take up a marriage equality case — and, if so, which one or ones it should take — the person arguably with the most powerful voice at the high court, outside of the justices themselves, has remained silent on the issue.
Marriage equality is currently in the "cert stage." More than 30 briefs have been filed with the Supreme Court in the seven petitions seeking certiorari — review by the justices — out of the five states, and they are now awaiting attention on September 29. The briefs offer views on whether the justices should take the case and, if so, which case or cases would be the best one to take.
Missing from the mix, thus far, is any filing from the United States government, in the form of an amicus curiae, or friend of the court, brief from the Solicitor General of the United States.
The solicitor general's view — as the government's top appellate lawyer in the Justice Department — is given great weight by the court, so much so that the role often is referred to as the "tenth justice." A 2010 article by Margaret Meriwether Cordray and Richard Cordray noted that, over the prior nine-year period, when the solicitor general weighed in at the cert stage, the Supreme Court followed his or her recommendation whether to take a case approximately 75% of the time.
Generally, although there are exceptions, the solicitor general doesn't weigh in on cases where the United States isn't a party until asked to do so by the court. This practice, where the court "calls for the views of the Solicitor General," could be the result of the September 29 conference where the justices will be considering those seven cert petitions.
The Supreme Court has good reasons for asking the solicitor general, Donald Verrilli Jr., what the view of the United States is on this issue. When the Supreme Court last heard a case challenging a state's marriage ban — California's Proposition 8 — the solicitor general weighed in as amicus curiae at the "merits stage," or, once the Supreme Court had already decided to take the case.
Asking the solicitor general for his view of the petitions pending before the court makes sense because the administration not only filed an amicus brief in the Prop 8 case, but it also asked for and was given time to argue the issue before the justices when they heard the case in March 2013. The solicitor general's office was the only party who argued in both the Prop 8 case and the case heard the next day challenging the Defense of Marriage Act. As such, the court is well aware that the administration is deeply interested in these issues.
In fact, one of the main reasons the administration filed the brief in the Prop 8 case, according to its own stated interest in the case, remains unsettled. "The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes," Verrilli wrote in that brief. With that question left unresolved in either the Prop 8 or DOMA decisions, the United States' interest in that question presumably remains.
Additionally, asking for the administration's views at the cert stage would enable the court to determine where the administration stands on issues it had left unanswered in the Prop 8 case. The unusual argument advanced by the solicitor general's office — which was met with little support from justices on either side of the ideological spectrum — was that Prop 8 should be found unconstitutional because California had chosen to extend almost all of the benefits of marriage to same-sex couples without extending the name of "marriage" to them. This so-called "eight-state solution" would have allowed the justices — had they not dismissed the case on the technical basis that the proponents of Prop 8 who appealed the trial court decision did not have standing to do so — to strike down Prop 8 in a way that only would have directly impacted bans in eight states and avoided a decision striking down marriage bans across the country.
At oral arguments, Chief Justice John Roberts asked Verrilli directly, "[I]s it the position of the United States that same-sex marriage is not required throughout the country?" Agreeing, Verrilli said, "[W]e are not taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has."
Now, with several petitions before the court from states that do not "have the situation California has," it could be helpful to the justices to understand what path the administration will be recommending at this point. This is particularly so because Attorney General Eric Holder suggested earlier this summer that the administration will be weighing in again should the issue come before the court. In an interview in July, Holder told ABC News, "If a case comes before the Supreme Court, we will file something consistent with what we have done that will be in support of same-sex marriage." He added that he believes "a lot of these measures" will fail if heightened scrutiny is given to sexual orientation claims as recommended by the administration. It would benefit the justices, particularly if deciding which of the cases before it to take, to understand what the administration's position is on the distinction between those cases.
Finally, and pragmatically, asking for the solicitor general's views of the petitions pending before the justices would give the justices some breathing room. Earlier this week, Justice Ruth Bader Ginsburg signaled that at least she is eager to see the outcome of the marriage appeals heard in the 6th Circuit Court of Appeals — specifically, whether the court will create a "circuit split" by upholding any of the bans in Kentucky, Michigan, Ohio, or Tennessee — before deciding whether to take one of the pending cases. If the court hasn't reached its decision by September 29, asking for the solicitor general's view of the pending petitions would show the justices are attentive to the issues without needing actually to decide what to do with the petitions.
The court needn't act on the petitions, so they could decide not to decide and just put off the decision for the future. Nonetheless, there is a price to holding the petitions — for the same-sex couples in the states where cases are pending. As Derek Kitchen — one of the plaintiffs in the case against Utah's ban — told BuzzFeed News back in April, "[W]e have a number of friends that are currently being harmed by the state's actions." As the petitions stack up at the Supreme Court — particularly, with stays in place because of the Supreme Court — the attention will soon turn to the justices if people begin to perceive them as the entity holding marriage equality at bay. And, while the justices are somewhat removed from the political pressures of public opinion, they are not immune to it.
Asking for — and getting — the administration's view on the pending petitions could be just the — thus far missing — step the court needs to give it the time to put the pieces in place that it has decided it needs before it takes on a marriage equality case.