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Solicitor General Asks Supreme Court for Time to Participate in Prop 8 Argument

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The Solicitor General of the United States, who filed an amicus brief at the Supreme Court yesterday in Hollingsworth v. Perry, the Prop 8 case, has also filed a request with the court to have time to argue in the case along with the plaintiffs' lawyers, Ted Olson and David Boies, and the opposing side's Charles Cooper.

The docket page for the case has this entry: "Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed."

The government asks for 10 minutes of argument time. The same-sex couples who are plaintiffs challenging the law have said, according to the filing, that they would give up 10 minutes of their argument time.

The motion notes that the special circumstances of this case, namely that the question of the level of judicial scrutiny that should be applied to laws targeting gays and lesbians as a class has not yet been decided by the court, warrant the federal government's participation in the case. The filing also points out that the government's position on the question is "unique." The government's brief in the case suggested that heightened judicial scrutiny applies and that when Prop 8 is viewed through that lens, the reasons given for the amendment are not enough to sustain the law.

The brief also points to California's specific circumstances as another reason that the amendment fails heightened scrutiny. California treats same-sex and opposite-sex couples the same except with regard to the label of "marriage," which is now only applied to opposite-sex couples. California's laws allow "everything but marriage" (including adoption and joint tax filings and the like) for same-sex couples.

The Solicitor General's request for more time also points out that some of the same arguments were raised in the challenge to Section 3 of DOMA, United States v. Windsor, so the court's approach to those issues are important to the government.

Scottie Thomaston is a contributor at Courage Campaign Institute's EqualityOnTrial.com, where this piece originally appeared.