David Boies | Gay Marriage | News | Proposition 8 | Supreme Court | Ted Olson

Olson, Boies And Allies Ask SCOTUS To Ignore Prop 8 Appeal


Ted Olson and David Boies, the attorneys most recently famous for their work to fight prohibition on same-sex marriage in California, joined their colleagues at the American Foundation for Equal Rights today in calling on the Supreme Court to push a Proposition 8 appeal back to a lower court. Doing so would effectively nullify the marriage ban in The Golden State.

Chris Geidner at BuzzFeed reports:

The case challenging the constitutionality of California's Proposition 8 is "an attractive vehicle" for determining "whether the States may discriminate against gay men and lesbians in the provision of marriage licenses" — but the Supreme Court should pass on the case, lawyers challenging the law say, and let stand an appeals court ruling that strikes down the 2008 amendment on narrow grounds.

If the Supreme Court takes the advice of Ted Olson, David Boies and the other lawyers representing the plaintiffs in Perry v. Brown, then Proposition 8 would remain unconstitutional, as the Ninth Circuit Court of Appeals held, and same-sex couples in California would regain the right to marry that they had been able to exercise briefly in 2008.

Read the request AFTER THE JUMP.

AFER - Plaintiffs Brief in Opposition - Prop 8 Challenge

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  1. Olsen and Boies have been promoting this case since day one as an attempt to get SCOTUS to confirm a fundamental right to marry. What never made sense is that their obligation is to win the right to marry ***for their clients***, not for everyone nationwide. So this is the only responsible move for them and anyone watching closely would have seen it coming. But it's quite a contrast with their rhetoric and fundraising appeals.

    Posted by: Bingo | Aug 24, 2012 6:06:44 PM

  2. No. Not just for their clients. It is for the whole state of California. It still will be a great advance if marriage equality is upheld in the most populous state of the Union. First New York, now California. The days of NOM and FRC are numbered.

    Posted by: simon | Aug 24, 2012 6:41:04 PM

  3. I am NOT surprised to read this article.

    We're in a chess game at this point.

    I am not a gambler and my limit in Las Vegas is 25 CENTS.

    I would NOT be surprised IF Ted Olson and David Boies at all drop their case.

    Posted by: anthony | Aug 24, 2012 7:12:07 PM

  4. Do read today's filing. It's a wonder summary of the case, the history of court rulings on equal marriage and civil rights in general and a lucid summary of why the court need not consider this case. The language is clear and concise (just skim over the citations). You WILL learn a lot.

    Posted by: TomTallis | Aug 24, 2012 7:16:15 PM

  5. Olson and Bois are better strategists than yours truly, but even I see the writing on the wall that DOMA is likely to be overturned by SCOTUS and Prop 8's chances are less certain. So ... if the 9th is not appealed, equal marriage returns to California ... and when DOMA is over-ruled, full federal recognition accrues to California gay married couples (as well as those in other equal-marriage states - and, essentially nationwide, since all states would have to extent full faith and credit to gay marriages performed in other states where it's legal). That's a winning strategy.

    Personally, I'd like to see them go for broke and take the Prop 8 case to the Supreme Court. But I concede that's not the wisest path toward the stated goal.

    Posted by: Zlick | Aug 24, 2012 7:46:59 PM

  6. @ZLICK.... The DOMA cases headed to the Supreme Court are only challenging Section 3 of DOMA. That is the section that stops the fed govt from recognizing valid same-sex marriages. But, none of the challenges are to the section of DOMA which allows states to NOT RECOGNIZE same-sex marriages from other states. So, the full faith and credit will not apply.

    Posted by: Tim NC | Aug 24, 2012 8:20:37 PM

  7. @ Tim NC: Even though the DOMA cases only challenge Section 3, I believe the Supreme Court justices are free to toss out the entire law if they wish. I think it's rather common for a case to come to the Supreme Court citing narrow grounds, but the Supreme Court justices can do as they please as to what parts of the law to declare unconstitutional. It's really up to their discretion.

    Posted by: Artie_in_Lauderdale | Aug 24, 2012 8:55:35 PM

  8. After Citizens United, I have no faith on where the Supreme Court might go. Citizens United asked the Court to decide a very narrow case and they expanded it - and overturned almost a century of settled law.

    This is the wiser course. The more states and the more people who have equal marriage rights, the harder it will be for the Supreme Court to take away those rights.

    Posted by: gr8guya | Aug 24, 2012 10:42:17 PM

  9. I'm hearing that in all likelihood SCOTUS will not take the Prop 8 case, which would automatically validate gay marriage in the state of California again (which would be so joyous) a win is a win, and getting gay marriage rightfully granted to millions of gay/lesbian/bisexual californians is a huge win.

    My question is: when would the announcement from SCOTUS to not take on the case come? Within October?

    Also, if that were to happen and the Ninth Circut Court decision that deems Prop 8 unconstitutional stays, can the anti gay crowd put the issue BACK to a vote in a few years? Or will this (finally) be the final chapter and gay marriage forever legal in CA?

    Posted by: Los Angelino | Aug 24, 2012 10:47:21 PM

  10. 1. My point about Boies and Olsen and "their clients". If course all of CA, and that's a lot, but far short of all the US, which was their claim and promise.
    2. There's not a chance in hell that all of DOMA will fall. The 2 sections of the law are entirely independent.
    3. Even without DOMA, states can probably refuse to recognize same-sex marriages. Read up on the "public policy exception".

    Posted by: Bingo | Aug 24, 2012 10:51:18 PM

  11. @LOS ANGELINO, if SCOTUS declines the case (we should know by Oct), then the 9th Cir decision stands and marriage equality will be the law of the land in CA.

    The Prop 8 folk will NOT be able to marriage equality up to a vote in the State of California ever again. Both the District Court and 9th Circuit found that the enactment of Prop 8 violated the U.S. Constitution. So even though Prop 8 was lawfully enacted under the California Constitution, it was not lawfully enacted under the U.S. Constitution, which supersedes the California Constitution.

    Posted by: Ryan | Aug 25, 2012 1:33:48 AM

  12. Then again, Boies and Olson HAVE to ask the Court to deny the appeal, don't they? It's what a "winning" party during a trial does, isn't it?

    Asking for the case to go to SCOTUS would be a/ disrespectful to the lower courts, b/ very cocky regarding their chances at SCOTUS level... Not the best course.

    By reading the brief, I'm not sure they've given up on SCOTUS at all...

    Posted by: G.I. Joe | Aug 25, 2012 5:55:01 AM

  13. It sounds like Boies and Olsen think there is a better case that will come before the Supreme Court than the Prop 8 case.

    Posted by: James | Aug 25, 2012 8:59:41 AM

  14. It's also a question of what these two think can be accomplished based on the facts, and what they know of the sitting justices. There was a chance after Walkers ruling that the SCOTUS might be forced to make a nation wide ruling. The Appeals court narrowed that to give the SCOTUS the chance to opt out on a very limited ruling just for California.

    So just as lawyers working for their clients it's totally expected for them to ask for this considering the two previous rulings. While they would LOVE to be able to go forward and fight for a nationwide ruling, and although there is a slim possibility of that actually happening and winning, the far more likely outcome is a ruling only for California. So why drag out another 6 months or more when the ruling could be done with ASAP.

    What's likely? My prediction is a refusal to hear Prop 8, and a DOMA section 3 repeal. This gives the federal government the ability to recognize same sex marriages while allowing the states to still decide individually what they want to do. A middle of the road decision for the court not ready to make a full marriage ruling. A punt for the conservatives on the court who see the writing on the wall but don't themselves want to be the ones to grant full marriage rights.

    Posted by: Michaelandfred | Aug 25, 2012 9:10:19 AM

  15. I hope that SCROTUS don`t take case. I hope that thet will be the next step. And if we win in California, it's great. The more big states that have marriage equality. The greater the chance we would like to get marriage equality federal valid in all states. (I think it then becomes difficult for the court to deny equality under the law for everyone when it comes to marriage=

    But how are the odds that the case will remain as it is? more than 50%? can anyone tell me what they think the odds are

    Posted by: nn | Aug 25, 2012 9:53:39 AM

  16. "This gives the federal government the ability to recognize same sex marriages while allowing the states to still decide individually what they want to do"

    Nothing would be worse than losing this case if it went before the Supremes. So if the attorneys think they would lose, then it makes sense to ask the Court not to consider the case.

    On the other hand, you should keep in mind that 30+ states have Consitutional bans on same-sex marriage at this point, which are going to be nearly impossible to un-do any time in the near future without the US Supreme Court nullifying them. The end result would be that we find ourselves in a situation where for literally decades to come, only a dozen or so states will have legal marriage, not really a very positive outcome.

    Maybe with the current constitution of the Court, that is the best we can hope for, but I kind of doubt that there is going to be a true liberal majority on the Court for a very long time, as divided as the electorate is right now.

    Posted by: NJRebb | Aug 25, 2012 10:51:29 AM

  17. Sadly, I think the current Court could go either way on the issue, and given that an adverse decision would be a disaster, I'm firmly in the "half a loaf is better than none" camp. We are close, but not there yet.

    The petition is quite entertaining reading; there's a great footnote on page 20 snarkily mocking the notion of a "Somewhat Equal Protection Clause" or a "Separate But Equal Protection Clause."

    Posted by: Drew | Aug 25, 2012 11:37:13 AM

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