When the Supreme Court hears oral argument in a case, it’s ordinarily only for one hour — 30 minutes for each side. But because of the very complex nature of the two marriage equality cases, court observers expect the court to extend that time to get all the issues in. They’ve started in the Prop 8 case by allowing the DOJ to intervene and have time to make their case. Solicitor General Donald Verilli will argue the same thing they did in their amicus briefs, that same-sex marriage should be considered mandatory in those states that have civil unions already but not everywhere:
“The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes.”
“Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.”
“Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples.”
“[Marriage] confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”
This is, as I’ve noted before, a rather odd position, one that is clearly more strategic than principled. It’s a pretty strange position to argue that it violates the Equal Protection clause to allow gay people to enter civil unions but not full marriage, but it doesn’t violate the Equal Protection clause to deny gay people either civil unions or marriage.
You can see a list of all the attorneys involved in oral argument in both marriage equality cases and what position they’ll be arguing here.