Solicitor General Donald Verrilli Jr. argued that gay and lesbian couples have a constitutional right to marry in states such as California, where civil unions are already legal, but it should remain an "open question" in other states.
"We are not taking the position that it is required throughout the country," Verrilli said of marriage equality. "We think that that ought to be left open for a future adjudication in other states that don't have the situation California has."
The court was flummoxed by the reasoning.
"You're saying it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country?" asked Chief Justice John Roberts.
So confused was he, Roberts repeated the question. "So it's got to happen right away in those states where same-sex couples have every legal right that married couples do," he said, "but you can wait in states where they have fewer legal rights."
"What I said is, it's an open question with respect to those states, and the court should wait and see what kind of a record a state could make," Verrilli responded.
"How would the record be different elsewhere?" Justice Sonia Sotomayor wondered.
Justice Antonin Scalia tried to straighten it out. "So your -- your position is only if a state allows civil unions does it become unconstitutional to forbid same-sex marriage, right?"
Verrilli responded by saying that he would strike the word "only" from that sentence and agree with it.