At the White House briefing on Thursday, White House spokesman Jay Carney said, "I think you have seen no expression from the president on the constitutional or legal aspects of this. He has an opinion, obviously, about Proposition 8 as policy, but we have no comment and nothing to say at this point about an issue that is properly looked at as a legal and constitutional matter over at the Department of Justice."
Back in May, the president told ABC News' Robin Roberts that he had evolved on the issue of gay marriage and had come to personally support it. He seemed to suggest in the interview, however, that he felt the issue should be left up to the states.
"I continue to believe that this is an issue that is going to be worked out at the local level because, historically, this has not been a federal issue, what's recognized as marriage," the president said.
But at the inauguration, he used much broader language:"Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law -- for if we are truly created equal, then surely the love we commit to one another must be equal, as well."
Even if the Department of Justice files a brief, it doesn't have to get to the broad question. It could, for example, limit its arguments to whether the supporters of Prop 8 -- in the absence of California officials who have refused to defend it -- have a legal right to bring the case. Or, it could argue in favor of the relatively narrow opinion from the 9th Circuit Court of Appeals.
In a conference call on Thursday, Olson urged the administration to step in.
"We very much would like the United States, in the form of the solicitor general, to file a brief," he said.
Olson, who served as the solicitor general under the George W. Bush administration, added that the justices pay particular attention when briefs come in on behalf of the government.