Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.
Quite often there's a great deal of disagreement within the executive branch about what we should do. Some cases are pretty straightforward, but a lot of them aren't.
My job was always to pull a vote over from somebody who was likely to be at least at the outset disinclined to agree with me on some things or at least disinclined to agree with the policy that I was defending.
One thing I've experienced and I feel really grateful for now that I'm on my way out is that I felt that the justices gave that back to me. I really did. You know, of course, you can have some sharp exchanges. That's the nature of the thing, and that's fine. But really in the main I felt like the tone from them was, "Yeah. We may not agree with you, but we're going to have a discussion about this." And it did.
I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power. It'd be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's - not only is it fair to read this as an exercise of the tax power, but this court has got an obligation to construe it as an exercise of the tax power if it can be upheld on that basis.
I feel so blessed to have had the chance to do this job [ U.S. Solicitor General] in this moment in our history. It's been an incredible thing.
What we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people, we now understand do not justify that kind of oppression.
I did think Justice [Antony] Kennedy's opinion on Lawrence was critical to that because it really, what Lawrence in one sense was, of course, about consensual sex being something that the government can't regulate. But really in a more fundamental sense, what it was saying, "Look. Gay people are normal people, and they get to live normal lives. They're not criminals by virtue of the fact of being gay."
If people can live openly and be equal, then you have to have a pretty strong reason to say they can't get married.
There was a huge movement that led up to [gay marriage legilization], and I played a small role in the great scheme of things. But it was really a privilege to get to do it.
I think what Lawrence did was provide an assurance that gay and lesbian couples could live openly in society as free people and start families and raise families and participate fully in their communities without fear. And two things flowed from that, I think. One is that has brought us to the point where we understand now in a way even that we did not fully understand in Lawrence, that gay and lesbian people and gay and lesbian couples are full and equal members of the community.
In the past, presidents had been consulted about those kinds of decisions by SGs, and I thought it was the right thing to do.
There was this point about, you know, the basic point there as well - this statute treats some parts of the country different from others, and what's the justification for that? Well, you know, I had eight million things to say about that, but he put it in such a sharp, excruciating way that it was just very hard to handle it effectively.
I think what happened is that everybody's impressions got formed in those first few minutes. And I felt like, by the latter part of it, I kind of clawed my way back into the discussion. But everybody's impressions were set at the beginning. And wholly apart from me and whether I was good or bad, you know, there were a lot of hostile questions.
People have got to make their best calls in what they think about a case when they're covering it. But I do think the lesson there, and I guess stating the obvious, that oral argument can as often send a false signal as an accurate signal about where the thing is going.
After a couple of years, I realized that this was actually true, that his gave me the ability to go to a different place and, hopefully, have a stronger impact.
I do think that the instant nature of the reaction now, I do think it has an effect, that people's instant reactions to things are valid and valuable. But they're not always right, and they're not always capturing the full reality.
I'm arguing for progressive positions on behalf of a progressive administration in front of a court who, before Justice [Antonin] Scalia's death, had a conservative majority that was quite conservative, frankly.
I'm representing the United States. And I'm representing the United States, and my office is representing the United States day after day in front of the court. And I think it's the right thing to do, to carry that out with some dignity and some respect for the process and respect for the institution. And so that led me to just, you know, move the dial a little bit in the direction of calmness.
The fact that you have a policy of such consequence directly affecting millions of people and you have a legal question of great consequence about the scope of the president's authority to act in implementing the immigration laws in this way and you have a one-line decision from the court affirming by an equally-divided court, it's an inevitable consequence of where we are.
It's the spring of 2012, that the [Barak] Obama administration would be embracing the argument that the Affordable Care Act was a tax, and that was going to, itself, be a political albatross.
Sometimes one of the justices, because they're, you know, they're brilliant lawyers themselves, can put the question in a particular way so that, even if you've prepared to talk about the topic, the question is put in such an excruciatingly difficult way that there's just no good way to handle it.
The moot court process in our office when we get ready, we - everybody, including the SG, does two moot courts for each argument. And they are phenomenal, and they predict 90 percent of the questions that I get asked, at least 90 percent.
Justice [Sonia]Sotomayor said, "Let's talk - you want to talk about the tax power."And I got like a 10-minute run on the tax power. And, boy, was I glad I did because I was able to get across this idea that, yes, this is a narrower ground on which you can affirm it. And I think everybody agrees. I think even the dissenting justices ultimately in the case agreed that, if Congress had expressly called it a tax, it would be indisputably constitutional.
When we're not a party, we sometimes file as amicus, as friend of the court, 25, 30 times a term, sometimes more. And in each of those cases, we've got to decide what position the government's going to take. And that is the solicitor general's job to make that decision.
