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.
“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.