The question of whether the federal government (as represented by the Department of Justice headed by Attorney-General Eric Holder) should take a position in the Perry case even though it is only about a particular state's marriage laws has been a slow boiling controversy in LGBT legal circles.The outcome of the Proposition 8 case is likely to affect the lives of gay, lesbian and bisexual Americans for years to come, even if the final disposition is not sweeping enough to wipe out all state laws currently banning same-sex marriage. A strong filing by the Justice Department, forthrightly declaring that denying the freedom to marry violates the Constitution, would put the full weight of the federal government on the side of justice and could influence the shape of the ruling.For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land — impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.Mr. Obama’s Inaugural Address appeared to reflect a deepened understanding that the right to marry the person of one’s choice is a fundamental right “under the law.” He needs to make sure his solicitor general conveys that sound legal view loud and clear in the Proposition 8 case.
However, now it is clear that the heterosexual supremacist forces represented by Charles Cooper are explicitly hoping that the Obama administration does not intervene in the case while the pro-marriage equality forces represented by Ted Olson and David Boies are explicitly asking for the support of the Department of Justice on behalf of the appellee-defendants:
Olson and Boies, former opponents from the landmark Supreme Court case that decided the 2000 presidential election for George W. Bush, urged the government to enter the case and assert that gay and lesbian couples have the same right to marry as a man and a woman. According to lawyers in the room, Olson stressed that the administration's voice should be heard at this historic moment. Olson, who as solicitor general under Bush from 2001-04 once ran such meetings, was especially fervent. He compared the contention that states need more time to resolve the gay-marriage dilemma to arguments half a century ago that states needed more time before blacks and whites could share the same public accommodations such as drinking fountains.
A former Reagan administration lawyer, Cooper argued in his session that marriage is the business of the states, so no federal constitutional interest can be asserted. Cooper referred to Obama's own comments suggesting that states should decide the matter and echoed much of what he had written in his recently submitted brief to the Supreme Court. In that, Cooper included Obama's remarks from a May 2012 interview with ABC News referring to the "healthy process and ... healthy debate" occurring in the states.The text is referring to arguments made by the pro-LGBT and anti-LGBT sides to Solicitor General Donald Verrilli (who actually represents the interests of the United States before the United States Supreme Court) at meetings that occurred on January 18th. The Obama administration and other parties considered "friends of the court" have until close of business on Tuesday to file their amicus curiae briefs.