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Ted Olson weighs in again on a possible Obama administration brief in the Prop 8 case

Prop 8 trial

By Scottie Thomaston

The American Lawyer has a video interview with Ted Olson, lawyer for the plaintiffs in the Prop 8 case, Hollingsworth v. Perry.

Asked about the ‘best outcome’ of the case, Olson said:

The best outcome of those two cases is that once and for all—and maybe this is too much to ask—but once and for all, the United States Supreme Court will say that people are entitled to equal treatment under the law, and under the Constitution irrespective of their sexual orientation—that they cannot be fenced off from constitutional rights, from the fundamental right to marry and other fundamental rights simply because of their sexual orientation.

There’s been a much-publicized push to get the Obama administration to weigh in on the case. As we’ve written, the administration is not a party to the case (as it’s a state issue) but the Solicitor General can file an amicus curiae (“friend of the court”) brief to express its views on the question presented in the case: whether the Equal Protection Clause of the 14th Amendment allows or prohibits California’s narrow definition of marriage. The Court generally pays close attention to the federal government’s views, but they don’t necessarily follow the views expressed.

Ted Olson has weighed in before on the effort, encouraging President Obama to get involved. Asked about it again he talked about the administration’s meetings with lawyers from both sides, and said:

We are hopeful that the Solicitor General and this president will take the side of marriage equality, will take the side of our citizens who are entitled to equal protection under the law, which is what the President said in his inaugural address.

But he doesn’t know what the administration will decide:

[W]hether there will actually be a brief filed in our favor on the Constitutional questions, I don’t know.

He also said there will be “two hours of argument in two days” for Prop 8 and DOMA meaning that the Court has not added any additional time yet: one hour for each case is scheduled. And in a brief comment he suggested the “due process clause” argument may still be made to the Court. He suggested that the merits of the cases will probably be litigated: he doesn’t think the Court would have taken both just to decide both on ‘standing’ issues.

Interestingly he suggested he thinks the “president is involved” in the determination whether to get involved in the case. He stressed that if anything gets filed the decision will come from the president himself.

The Solicitor General has until February 28 to file an amicus brief supporting the gay and lesbian couples who are plaintiffs. The deadline for filing a brief supporting the proponents has passed.

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