1. Bingo says

    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.

  2. simon says

    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.

  3. anthony says

    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.

  4. TomTallis says

    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.

  5. Zlick says

    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.

  6. Tim NC says

    @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.

  7. Artie_in_Lauderdale says

    @ 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.

  8. gr8guya says

    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.

  9. says

    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?

  10. Bingo says

    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”.

  11. Ryan says

    @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.

  12. G.I. Joe says

    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…

  13. Michaelandfred says

    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.

  14. nn says

    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

  15. NJRebb says

    “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.

  16. Drew says

    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.”

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