Prop 8 attorney Ted Olson responds to the Ninth Circuit’s ruling: “we’ll oppose” Supreme Court review
June 5, 2012
By Scottie Thomaston and Jacob Combs
On a media call today, Ted Olson, one of the lawyers who successfully argued the Prop 8 case at both the district court and appellate court levels, as well as AFER president Chad Griffin and attorney Theodore Boutrous, answered questions about the ruling released today in which the Ninth Circuit denied an en banc rehearing of decision striking down the law as unconstitutional. Asked about whether the current Prop 8 case would be consolidated with the DOMA Gill case that will be sent to the Supreme Court for possible review, Ted Olson said that it’s possible the cases could be heard “on the same docket” – that is, on the same day – but probably not consolidated as one case. Ultimately, he conceded he doesn’t know the outcome of that situation, but it would be unlikely for the cases to be consolidated, given that one (the Prop 8 case) deals with the rights of gay and lesbian couples to get married in the first place, while the other (Gill) concerns the discrimination in federal rights and benefits suffered by legally-married couples under DOMA.
As Chris Geidner wrote earlier today at Metro Weekly, Charles Cooper, the attorney for the proponents of Prop 8, has announced that he and his colleagues will be seeking Supreme Court review (in legal speak, they will technically file a petition seeking a “writ of certiorari,” also know as “cert”). Speaking to Metro Weekly, Cooper said:
We’re pleased to petition the Court to hear this case. The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent. We are hopeful and confident that the Supreme Court will review the 9th Circuit’s decision.
When asked how he and his colleagues plan to respond to the proponents’ certiorari petition, Olson told Metro Weekly pointedly, ”We’ll oppose that.”
The Supreme Court, which generally recesses for the summer by late June, would then consider the petition after further briefing in support of and against a review is completed, likely once the justices return in the fall. By Supreme Court practice, four of the justices would need to vote to hear the case in order for the court to accept it.
Olson elaborated on he and his colleagues’ reasoning for opposing certiorari, saying that he and his fellow lawyers represent four individuals who wish to get married in California, but who face Proposition 8 as an obstacle. For the plaintiffs, overturning Proposition 8 is the desired victory and their lawyers have an obligation to pursue that goal as quickly and simply as possible. Olson said that he would certainly look forward to an airing of all the issues surrounding this case and marriage equality in general at the Supreme Court, but that he feels an obligation to preserve the victory for his clients.
One interesting note about Olson’s comments is his elaboration on the reach of the narrowly-written Ninth Circuit opinion. He suggested that, in fact, the decision could actually reach further than that, even if the Supreme Court upholds it as written. He said that it could affect states like North Carolina, that just passed Amendment 1, banning marriage for gays and lesbians as well as civil unions and domestic partnerships. Of course, that issue would have to be taken up by other courts in the future, since it would be on a case-by-case and state-by-state basis.
Regardless, the Prop 8 decision is likely to have a major impact no matter which court ends up having the final say on the matter. California is, of course, the most populous state in the nation, and if marriage equality is restored to the state, the number of people living in states with full marriage rights would double to 1 out of every 5 Americans. If the Supreme Court decides not to take up the Prop 8 case, the Ninth Circuit’s ruling would become precedent in the largest judicial circuit in the U.S., and while it would not bring full marriage rights to the other states in the circuit, it could be cited persuasively in future LGBT litigation. And, of course, if the Supreme Court does take up the case, the effect could be even greater. Either way, today’s news puts us one step closer to a major LGBT legal decision that will dramatically change the lives of many Americans.