The Solicitor General impact

Timothy Kincaid

February 8th, 2012

If you are like me, you have but the vaguest idea of what the US Solicitor General does and probably can’t name who currently holds the office.

The Solicitor General is a member of the Department of Justice and answers to the Attorney General. But the Solicitor General’s role is specific: he is the person appointed to represent the federal government of the United States before the Supreme Court of the United States.

Outside the beltway, this is not a position that is situated to get much press, nor is it one in which the issue of same-sex marriage would seem – yet – to be of interest. But the nation’s solicitor generals have been integral players in the marriage equality fight and it is, to a large extent, a fight between Republicans.

Charles Fried – Reagan 85-89 – Currently teaching at Harvard Law. Though his contribution has been limited to opining, he has certainly done his share. An advocate for civil unions, in 2007 he argued that marriage (the status) should be determined by the people not the courts. His argument is the counterpoint to our insistence that the government should not deny the social benefits of the marriage designation; he asserts that a legal body should not grant sociatal benefits. In August of 2011, he wrote denouncing DOMA and advising that the Congress should revoke it rather than have the courts broaden the question.

Same-sex marriage is allowed in six states and the District of Columbia. DOMA spells an impediment to what is a legal arrangement in those states. If on no other grounds, federalism concerns militate strongly against it. There is also a strong equal protection claim that some persons legally married in one state should not be denied federal benefits granted to others married there. Ideally, Congress would repeal DOMA before the case reaches the Court, but with the dysfunctional Congress we enjoy today that is most unlikely to happen. Thus a ruling is unavoidable and its outcome is very likely to be invalidation of DOMA. That leaves the question of how the Court will reach the result. Will it rule broadly in favor of a constitutional right to same-sex marriage, or narrowly against the federal discrimination entailed by DOMA? The latter, preferable form of ruling would leave messy Full Faith and Credit issues to be sorted out. I guess that over time, those would become less acute and disappear altogether.

It was Fried’s comments to Bloomberg News that caught my interest.

“I think it’s hard to avoid,” he said in a phone interview, adding he could see five justices finding in favor of it. Still, such a ruling may be so narrowly drawn that it applies only to the California referendum at issue rather than becoming the law of the land.

“The result is that opponents of gay marriage could keep the issue alive forever,” said Fried, who served as U.S. Solicitor General under Republican President Ronald Reagan.

Ken Starr – GHW Bush 89-93 – Best known for the Starr Report, a sensational summary of his investigation into the Clinton scandals as Independent Counsel, Starr is currently the president of Baylor University, a Baptist affiliated school in Texas.

Starr was the lead counsel in defending Proposition 8 before the California Supreme Court in the debate over whether Prop 8 was an amendment or a revision (which requires 2/3 legislative approval). Starr succeeded in having the proposition held as an amendment, but was not successful in getting the 18,000 marriages that had occurred in the marriage window to be deemed invalid.

John Roberts
– GHW Bush 90 – just as acting Solicitor General for one case. Roberts is one of nine people who will ultimately determine the constitutionality of anti-gay discrimination. But he has already some history here. In March 2010, anti-gay activists sued to have the District’s marriage law put to a referendum. They asked the presiding judge to stay the law until their case was heard. Roberts declined and marriage went into effect. But even more interesting and relevant is that Roberts, while an attorney with Hogan & Hartson, did pro-bono work on Romer v. Evans, advising gay attorneys on strategy before the Supreme Court and holding moot court sessions. The Ninth Circuit ruling on Proposition 8 is significantly based on Romer.

Clinton’s three Solicitors General, Drew Days, Walter Dellinger, and Seth Waxman, do not seem to have been significantly involved.

Ted Olson
– GW Bush 01-04 – Ted Olson came to the nation’s attention when he squared off with David Boies before the Supreme Court to determine whether George W. Bush or Al Gore had won the presidency. The legislative effort which resulted in this week’s Ninth Circuit ruling that Prop 8 is unconstitutional was born when Olson picked up the phone and called Boies and suggested they join forces to have anti-gay discrimination be subjected to the constitutional scrutiny which it violates. Olson and Boies share chief counsel.

Paul Clement – GW Bush 04-08 – Clement, currently a Georgetown professor, is the special counsel hired by the Republican House Majority Leader Boehner to defend the Defense of Marriage Act in court after the Justice Department refused to do so on the grounds that it is unconstitutional. So far, Clement has not had much success, has declined to offer defense in some matters, and seems to be presenting as low-key a defense as can be made.

Frankly, I’m not sure what to make of Clement’s efforts. Perhaps he is aware that DOMA has no legal leg to stand on, is an offense to federalist minded judges and an affront to civil rights minded jurists, and has few legal minds who make any attempt to defend it on anything other than ‘don’t like them gays’ grounds. But for an attorney with such a high profile, his DOMA efforts are surprisingly silent.

Gregory Garre – GW Bush 08-09 – Garre has not, to my knowledge, been directly involved in the marriage debate. However, he has made a tangential contribution. When the Christian Legal Society sued Hastings Legal College over school rules which banned anti-gay discrimination in school groups, it placed the question of religious-based objections to homosexuality before the Supreme Court. In a ruling that delighted our community, but with which I had some misgivings, the court ruled that Hastings was justified in refusing to consider religious objections to the policy. This case gives insight to the feeling of the justices as well as grounds for strategy. Garre was the attorney who successfully defended Hastings.

Elena Kagan
– Obama 09-10 – Ms. Kagan will also be one of the nine jurist who determine the eventual outcome. She is considered to be a vote and a voice of support, among other things.

And the current Solicitor General is Donald Verrilli, by the way.


February 9th, 2012

Timothy, this is an interesting report. My primary takeaway is that the Solicitor General has to be a very, very good lawyer.

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