03/26/2013 04:38 pm ET Updated Mar 27, 2013

Obama Administration Argument In Marriage Equality Case Confuses Justices

WASHINGTON -- The Obama administration, which made its own argument before the U.S. Supreme Court on Monday, offered a line of reasoning that was just as confusing to supporters of marriage equality as it was to its opponents.

Solicitor General Donald Verrilli Jr. argued that gay and lesbian couples have a constitutional right to marry in states such as California, where civil unions are already legal, but it should remain an "open question" in other states.

"We are not taking the position that it is required throughout the country," Verrilli said of marriage equality. "We think that that ought to be left open for a future adjudication in other states that don't have the situation California has."

The court was flummoxed by the reasoning.

"You're saying it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country?" asked Chief Justice John Roberts.

So confused was he, Roberts repeated the question. "So it's got to happen right away in those states where same-sex couples have every legal right that married couples do," he said, "but you can wait in states where they have fewer legal rights."

"What I said is, it's an open question with respect to those states, and the court should wait and see what kind of a record a state could make," Verrilli responded.

"How would the record be different elsewhere?" Justice Sonia Sotomayor wondered.

Justice Antonin Scalia tried to straighten it out. "So your -- your position is only if a state allows civil unions does it become unconstitutional to forbid same-sex marriage, right?"

Verrilli responded by saying that he would strike the word "only" from that sentence and agree with it.

Justice Stephen Breyer noted that the administration's preferred outcome could actually retard the movement toward equality, by discouraging states from considering even civil unions, since a civil union would automatically become marriage.

"I would guess there is a real-world effect there, too, that states that are considering pacts will all say, 'We won't do it' -- or not all, but some would. And that would have a real effect right now. And at the moment, I'm thinking it's much more harmful to the gay couple, the latter than the former," Breyer said. "But you won't give me advice as the government as to how to deal with that."

In fact, noted Justice Ruth Bader Ginsburg, the administration's reasoning could persuade states to roll back their civil unions. "Suppose one of those states repeals its civil union laws?"

"It would be a different case," Verrilli said, conceding that the constitutional right could vanish. "And all I'm saying is that the door ought to remain open to that case, not that it would be easy for the state to prevail in that case."

Fortunately for advocates of marriage equality, the administration was not their main advocate. Ted Olson, a top Bush administration official, argued that marriage is a fundamental constitutional right that is available to all people, regardless of sexual orientation or the state in which they live.



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