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Ted Olson suggests that the Supreme Court will take up Prop 8, DOMA cases
October 22, 2012
By Scottie Thomaston
The Prop 8 case is now awaiting a conference at the Supreme Court, where they will determine whether to take up the case or decline to review the Ninth Circuit’s decision striking down Prop 8 as unconstitutional on fairly narrow grounds. The initiative sponsors of Prop 8 petitioned the Court to review and overturn the Ninth Circuit’s decision and the opponents of Prop 8, led by Ted Olson and David Boies, responded to the petitions by opposing review.
In comments at the Commonwealth Club in San Francisco, Ted Olson suggested that the Supreme Court will review the case:
I think there’s a pretty good chance that they’ll take it,” Olson told an evening forum at the Commonwealth Club.The Supreme Court grants review of only a small percentage of the thousands of appeals submitted to it each year.
But Olson said he thinks the justices may want to review the California same-sex marriage ban so that they can decide related claims in that case and in federal Defense of Marriage Act challenges at the same time.
The legal team had argued that the Supreme Court should not grant review because there was no “circuit split” on the issue, the case presented a unique issue of ‘legal standing’, and if granted, the Court may be forced to affirm the Ninth Circuit’s decision on broader grounds if it were to disagree with the Ninth Circuit’s narrow holding but not the outcome.
Olson said:
“We would be happy if the court refuses to hear the case, but not as happy as we would be if we had established this as a constitutional right for all people in the United States[.]“
Asked about the tougher road to get the Supreme Court to strike down a state marriage ban versus Section 3 of the Defense of Marriage Act, the federal definition of marriage, Olson said:
“I’m not too worried about that,” Olson answered, “because at some point we do have the 14th Amendment” federal constitutional guarantees of equal protection and due process.“There is a floor, and states, whatever their rights are, can’t go beneath that floor,” he said.
The Prop 8 case is awaiting a decision on whether the Supreme Court will hear the case. The next conference is Friday, October 26. Orders from that conference will be released the following Monday, but there is no way to know which cases will be taken up at that conference until after the order list is released.
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37 Comments Leave a Comment
1.
Elizabeth D-V | October 22, 2012 at 12:22 pm
I respect all he's done, but I hope he's dead wrong. Me and my partner started dating a couple months before prop8 passed. That night we cried harder over prop8 then we did celebrate our new president and how wondeful it was to say finally that we would have a more culturally diverse president. It's now 4 years later. We have started this journey together, and just want to be able to end it together too. I believe in my state. I want to believe that this nightmare will soon be over. We've been to the courthouse 3x waiting for rulings to come down. Despite them gping our way we have yet to been married. I have no desire for prop8 to be taken up. And god forbid Romney is elected and theres yet another delay as he puts the lawyers to work to defend this
Crap. Just leave my state alone. Why bother with prop8 when DOMA Is so much farther reaching?
2.
Anthony | October 22, 2012 at 1:21 pm
Here's to hoping they deny cert and this BS is finally over…
3.
TomTallis | October 22, 2012 at 1:36 pm
Olson and his team wrote too good a brief for the SCOTUS to hear the Prop H8 case. I'm about 90% sure that they will decline to hear it and I wish that they'd just effin' GET ON WITH IT!!!
4.
Stefan | October 22, 2012 at 1:45 pm
Romney getting elected wouldn't delay this at all. This is a state's matter not a federal one.
5.
Stefan | October 22, 2012 at 1:47 pm
Olsen also thought the proponents of Prop 8 didn't have standing grounds to defend the case in court, and look what happened there.
I still fully expect that the Supreme Court won't hear Hollingsworth v Perry.
6.
devon | October 22, 2012 at 2:15 pm
Romney's election probably wouldn't affect the prop 8 matter, but it would affect the various DOMA lawsuits.
Romney would direct the DOJ to once again defend DOMA as soon as he takes office.
This would likely cause the supreme court to delay any actions on DOMA until congress approves a new Solicitor General at DOJ, and legal briefs are filed to support the new government position. That wouldn't happen during the current supreme court session.
7.
Mark | October 22, 2012 at 2:21 pm
Romney getting elected could mean an Amendment to the Constitution and also appointing more conservative Supreme Court Justices. We need to do all in our power to make certain that this does not happen. Get out and vote, and tell your friends. This is no time to be silent.
8.
louis | October 22, 2012 at 2:28 pm
I don't think there is any mechanism to delay a supreme court case from one term to another. The administration changes once every four to eight years in the middle of a supreme court term, so I'm sure this happens on occasion. If the Supreme Court accepts one or more cases, I think the cases will be fully briefed under the current administration. If the new administration choses to reverse course, then they would have to do it within the confines of the current term and I think the Supreme Court would be mighty suspicious if the current administration argues that gays are a suspect class and a new administration changes course entirely.
9.
Jamie | October 22, 2012 at 2:30 pm
The California Supreme Court invented standing for the proponents out of thin air and the 9th Circuit gladly took their direction. Whether it actually jives with the requirements that the Supreme Court laid out regarding federal standing is probably one of the major questions, should the Supreme Court take up the case.
10.
Mike in Baltimore | October 22, 2012 at 2:46 pm
SCOTUS will NOT take up the case without first determining whether all parties have standing or not. If one or more of the parties don't have standing, cert won't be granted at SCOTUS.
The question of standing is what I believe is holding up SCOTUS from granting cert or not.
11.
Jamie | October 22, 2012 at 2:51 pm
Romney couldn't amend the Constitution to ban same sex marriage even if he wanted to do so.
12.
Jamie | October 22, 2012 at 2:55 pm
Simply not true. The Supreme Court accepted the Arizonans for "Official English" case and then found that no one had standing.
13.
dong90806 | October 22, 2012 at 6:55 pm
I understand your desire that the SCt deny cert in the Prop 8 case which will allow gay and lesbians in Cal to marry. However, if the SCt grants cert, then gays and lesbians all over the United States will be able to get married.
14.
dong90806 | October 22, 2012 at 6:59 pm
STANDING: A person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action in order to have standing. There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.
What injury did the Prop 8 proponents suffer and how will a resollution of the case in their favor redress their injury? In fact, the same question applies to BLAG. Congress has the authority to go into court — but a Committee of the House of Represenatives?
15.
Stefan | October 22, 2012 at 7:01 pm
I'm just re-evaluating this article, and Ted Olsen never actually said that it was likely the Supreme Court would take the case. He said there was a good chance. A good chance may mean not even a majority. As I said before, they argued strongly for refusing cert, and I expect the Supreme Court will follow suit with this case and Brewer v Diaz, while granting cert in at least some of the DOMA cases.
16.
Eric | October 22, 2012 at 7:09 pm
The CA Supreme Court really dropped the ball on standing. If the people intended proponents to have standing, they would have said so in the initiative language, maybe it should have been more than fourteen words.
Where I on the CA court I would have rejected standing and suggest that proponents pursue a malpractice claim against Pugno and his mediocre legal advice.
17.
Eric | October 22, 2012 at 7:13 pm
It's not even a committee, it's an advisory group.
What BLAG is doing now goes way beyond what an advisory group is authorized to do. One of the federal judges said as much and that is why we now see BLAG being challenged for standing.
18.
Straight Dave | October 22, 2012 at 9:36 pm
I thought that standing was granted, not based on injury to the proponents, but on their right to represent the interests of the state of CA. There's no question that CA has a right to defend its own laws, so the proponents presumably were authorized to that exercise that right "in the shoes of the state".
The problem that I think was overlooked is that we're still lacking a concrete injury. In fact, the state (Brown, et al) argued that CA suffered no injury, and in fact would benefit from Walker's invalidation of Prop 8. I think SF made the same point. So even if the proponents are allowed to represent the state, the state has suffered no real injury.
Proponents may still claim they personally suffered some injury, although I don't think that amounts to anything more than being pissed off, which isn't legally sufficient. But, in any case, I don't recall CA SC recognizing opponents' standing on their own, but only as being reps for the state. But in the state's position, they lack injury – i.e., the state has already disclaimed any injury. For better or worse, SCOTUS could very well reject any standing claim, which would possibly reinstate Walker's decision. It ends up at more or less the same place, but with another 6 months delay.
God, this is messy. Please just deny cert already!
19.
bythesea | October 23, 2012 at 12:34 am
Agreed, but he did sign a pledge to do his best to try. Too bad for NOM that ship has already sailed.
20.
W. Kevin Vicklund | October 23, 2012 at 12:57 am
Defendants do not need to sustain injury, as they are the ones who have perpetuated the alleged injury. If, as the Cal Sup Ct found, proponents are proper defendants, it is sufficient that they caused the injury sustained by plaintiffs. So long as plaintiffs have an injury in fact (which I hope everyone here agrees is the case!) and the courts are not barred from remedying that injury (obviously, they are not barred), all proponents have to do to attain standing is show that they are proper defendants.
21.
Lymis | October 23, 2012 at 4:29 am
Not so much. If the Supreme Court denies cert, then the current decision stands – and marriage is indeed reinstated in California.
If the Court grants cert, they agree to hear the case, not to decide it in our favor. They could do anything from declare LGBT people a suspect class requiring heightened scrutiny and declaring that marriage is a fundamental right for all citizens, not just straight ones, to declaring that we have absolutely no rights in the matter and that it's up to each state.
There are no guarantees.
22.
Lymis | October 23, 2012 at 4:36 am
That's correct. Their logic was that since the initiative process was specifically created so that they people could override both the governor and the legislature – including provisions that the legislature cannot override an initiative by subsequent legislation, that it made no sense for the governor or legislature to be the only ones who could defend the law when speaking for the state.
The proponents are NOT in court as injured parties, but as representatives of the People of California as represented in the initiative.
The fact that things like standing are fuzzy reflects how badly the changes to the California Constitution were written when the initiative process was put in place.
One answer, of course, would be to clean up the requirements by making an additional amendment, but that's the sort of thing that never happens because nobody cares until it bites them in the butt.
23.
Steve | October 23, 2012 at 6:47 am
Although courts shouldn't look to popular opinion at all, SCOTUS often does. They'll be very reluctant to make a decision that goes beyond CA.
24.
nicksternet | October 23, 2012 at 7:46 am
LA Times editorializes that Ruling at SCOTUS may not be good for Gay Rights.
http://articles.latimes.com/2012/oct/21/opinion/l…
25.
Midwesterner | October 23, 2012 at 10:15 am
According to a press release from Log Cabin Republicans presently on Pam House's Blend, Ted Olson is endorsing Mitt Romney to be President.
Romney wants to amend the Constitution to prohibit marriage equality. *How wildly offensive — how **evil** — is that?* Also, if, God forbid, Romney were elected, he will appoint Supreme Court justices who will be unfavorable toward marriage equality.
This is not intellectually or morally consistent of Mr. Olson. Mr. Olson has elected to take an extremely high-profile role in the pursuit of marriage equality. I would have thought that issue would have not just mattered, but mattered a very great deal, in his choice of President.
I have lost 99.9% of the respect I formally had for him.
I would like to see him explain this inconsistency. I hope readers of this blog and others who are concerned about marriage equality will convey to Mr. Olson why and how we think his endorsement of Romney is offensive. It feels like a sudden, forceful kick in the privates from a formerly good friend.
I honestly also now feel much less good about donating to AFER.
26.
mprince | October 23, 2012 at 11:54 am
Olson is a founding member of the Federalist Society; he argued Citizens United in front of the SCOTUS; he was Reagan's personal counsel during Iran-Contra. When he got involved in Prop 8, there was no question he was a far right Republican. I don't expect him to change his entire political ideology simply because he's championing the right for all Americans to get married. We should expect all Americans to believe in that right. I think the more we divorce marriage equality from two party politics, the better. It shouldn't be a political issue and we shouldn't expect all our supporters to conform to the entirity of the rest of our political thinking. If anything, only good can come of this. If Romney taps Olson for high ranking posts, as both Bush and Reagan did following his support of their campaigns, we know there is a pro-equality advocate in an adminstration that may otherwise be hostile to our community.
27.
Guest | October 23, 2012 at 12:02 pm
Not if we lose. Which is just as likely at the Supreme Court level as a win.
28.
Guest | October 23, 2012 at 12:02 pm
Questions of jurisdiction and standing can be taken up at any time in the appellate process.
29.
Guest | October 23, 2012 at 12:05 pm
No, the CASC delivered a thoughtful, consistent answer to the question posed to them. The real problem is that CA standing doctrine is far, far more liberal than Federal law, and this Court is wedded to the protection of the initiative process so much that it boggles the imagination.
30.
nicksternet | October 23, 2012 at 12:12 pm
When Olson said he would take Prop8, I was skeptical! I had my suspicions, and now I see they are coming to fruition. A backdoor way to scuttle our rights. I knew it!
31.
Steven | October 23, 2012 at 9:53 pm
Please give Prop 8 case and Ted Olson a chance to win our rights back. Don't be skeptical BE thankful.. Because he supports Romney it doesn't mean that our rights to scuttle. No way Romney would to pass a constitutional ammendment. There are many too steps to pass it and go through the states, and Bush tried it, but What happened?/???????
32.
Mike in Baltimore | October 23, 2012 at 9:56 pm
People in Kansas, Nebraska, the Dakotas, Colorado, Wyoming, etc., in the late 19th century would have laughed at anyone who said the Constitution would be amended to prohibit drinking. And yet, some of the first states to vote to amend the Constitution to prohibit drinking were the above named states.
In the 1920s in Germany, most would have laughed at any person who said that Germany would lead the world into another World War, and be one of the most hated countries in the world for several decades. I remember my grandfather, in the late 1950s/early 1960s, vowing to write out of his will any person in it who bought a Volkswagon or other German-made automobile.
NEVER count your chickens before the eggs hatch.
33.
Mike in Baltimore | October 23, 2012 at 10:29 pm
"Questions of jurisdiction and standing can be taken up at any time in the appellate process."
So SCOTUS is not part of the appellate process? Or if it is, SCOTUS cannot decide if any or all parties have standing or not before deciding whether or not to accept the case, but MUST go with what other courts have decided?
It is not general practice at SCOTUS to determine standing prior to determining whether to take the case or not? Remember, the 9th Circuit let the California Supreme Court determine if the backers of Prop 8 did or did not have standing before it decided to accept the case. SCOTUS will just automatically accept the decision of the Cal SC?
34.
Mike in Baltimore | October 23, 2012 at 10:36 pm
BLAG is not (at this time) involved in the Prop 8 case, at least not directly.
35.
Mike in Baltimore | October 23, 2012 at 10:51 pm
Standing in a California court (or any other state's courts) does NOT automatically transfer to standing in a Federal court. In most cases it does, but it is NOT a universal.
Wasn't one of the questions most people expressed after the CA SC decided the backers of Prop 8 had standing before California courts was whether the 9th Circuit Court would accept the CA SC reasoning, or decide to not accept the decision?
36.
Mike in Baltimore | October 24, 2012 at 12:57 am
Or SCOTUS could accept cert to tell the 9th Circuit that it's ruling was too strict, and the proper ruling should incorporate some or all of the District Court's ruling (which would mean marriage laws are the state's responsibility). They also could tell the 9th that it should also consider whether a marriage in California (and/or other states) is valid or not in all 50 states.
Yes, it's a toss-up of why SCOTUS might grant cert (or not), but the reason(s) for accepting might be for reasons no one yet knows.
37.
Mike in Baltimore | October 24, 2012 at 1:07 am
Actually, not exactly true.
The decision by Ruth Bader Ginsburg and signed by all other justices began with:
"Federal courts lack competence to rule definitively on the meaning of state legislation, [ ] nor may they adjudicate challenges to state measures absent a showing of actual impact on the challenger [ ]. The Ninth Circuit, in the case at hand, lost sight of these limitations."
In other words, a decision was made – that decision being the the case didn't belong in Federal courts to begin with.
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