Last Call

The Prop 8 all-star lawyer team of David Boies and Ted Olsen are trying to turn a long punt to the Supremes into a field goal for same-sex marriage in California, rather than going for a touchdown.

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.

The proponents of the law asked the Supreme Court on July 31 to take the case and uphold the voter-initiated constitutional amendment that had the effect of reversing a California Supreme Court decision that allowed same-sex couples in the state to begin marrying under state law.

In the filing before the Supreme Court, Olson, who was President George W. Bush's top Supreme Court lawyer in the Department of Justice, is the counsel of record for the plaintiffs — meaning it is he who would be likely to make the case to the justices in oral argument should the court accept the case.

He and Boies, Al Gore's lawyer in the 2000 election recount litigation who opposed Olson at the Supreme Court, argue today that the lower court decision striking down Proposition 8 properly applied a 1996 Supreme Court case, Romer v. Evans, calling the Ninth Circuit's opinion a "straightforward application of settled Supreme Court precedent."

Now this is interesting.  What Boies and Olson are saying is that the Prop 8 ruling should be passed up for the much more germane to the entire country cases before SCOTUS of the multiple appeals courts striking down DOMA, but in the meantime, let California have gay marriage back.  Be a pal.

It's actually clever, and it's something I agree with.  It also makes an inordinate amount of sense.  It's the DOMA cases that will decide the fate of same-sex marriage in the country, and I'm betting that decision could come as early as next year.

But that also means that the Supremes could cause all kinds of chaos too.

We'll see.