March 1, 2013

Marriage equality Marriage Equality Trials Prop 8 trial

By Scottie Thomaston

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

The motion notes that the special circumstances of this case warrant the government’s participation in the 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. 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 pointed to California’s specific circumstances as another reason 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.

The filing; h/t Kathleen

Perry: Motion of Solicitor General by EqualityCaseFiles

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