After two days of tense arguments in the Supreme Court over same-sex marriage, we don’t know for certain how the justices will rule on either California’s Proposition 8 or the Defense of Marriage Act. But we did see — over and over — Chief Justice John G. Roberts’ irritation with and contempt for the Obama administration.
Roberts’ attitude was manifest on both days, and it was directed at Donald Verrilli, the solicitor general. The chief justice wasn’t complaining about Verrilli’s performance, but rather about the Obama administration policies the solicitor general was trying to defend.
Verrilli took a peculiar position in the Prop 8 case. He focused on the eight states, including California, that have civil unions that offer gays and lesbians equivalent rights to marriage. Verrilli said those states violated the equal protection clause, because the only reason they denied same-sex couples the word “marriage” had to be out of hostility toward them.
But, as Roberts knew, this was a political tightrope walk for the administration. The eight states were largely blue, and they probably wouldn’t mind giving couples full same-sex marriage rights at this point. But the states that don’t allow civil unions are red, and they would resent Obama trying to impose same-sex marriage on them. So Obama backed off on that political challenge, and Roberts noticed.
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