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Prop 8 attorney Ted Olson responds to the Ninth Circuit’s ruling: “we’ll oppose” Supreme Court review

Marriage equality Prop 8 trial

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.


  • 1. JonT  |  June 5, 2012 at 5:00 pm

    Yay! :)

  • 2. Alan_Eckert  |  June 5, 2012 at 5:20 pm

    It's been said since very early on that Olsen and Boies ultimately work for their clients, and denying certiorari is the fastest way to a victory for their clients.

  • 3. Straight Ally #3008  |  June 5, 2012 at 5:20 pm

    …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.

    Chew on that, NOM.

  • 4. Bill S.  |  June 5, 2012 at 5:35 pm

    It's vital to preserve this ruling as it preserves the factual record meticulously laid out by Judge Walker in the District Court decision. Even though the appeals court affirmed the decision on different grounds, the findings of fact remain undisturbed.

  • 5. jpmassar  |  June 5, 2012 at 5:38 pm

    Munch, munch, munch… Choke. Gaaaowjnksk.

  • 6. Steve  |  June 5, 2012 at 6:37 pm

    Washington is the next 9th Circuit state that faces a public vote repealing marriage equality

  • 7. Scott Wooledge  |  June 5, 2012 at 6:54 pm

    The potential for reversal is not good for Prop 8 proponents. They is a not insignificant chance it could backfire, in a small victory, like a reinforcing of heighten scrutiny or an enormous victory, a finding of a Constitutional right to same-sex marriage.

    The conservative approach for Prop 8 proponents would be to know when to fold 'em and contain the damage to CA and this narrow appelant ruling.

    They haven't been particularly good legal strategists though, so I am unsurprised they are sallying forth in their relentless vendetta. Jesus is their co-counsel after all!

  • 8. B_Z  |  June 5, 2012 at 6:59 pm

    It's different, because marriage equality hasn't gone into effect yet in Washington (unlike California).

  • 9. fRaNkLiN  |  June 5, 2012 at 7:07 pm

    I don't think the taking away of rights is the determining factor in the Perry decision. States are free to take away rights, if there is a rational reason. The more important issue is that it's irrational to give one group of citizens the exact same rights as another group of citizens, but demand that they call it something else.

    For example, it would be utterly irrational if California decided to give anyone over 65 the right to get a drivers license, but demanded that they call themselves "grey hairs", not "drivers". It's discriminatory on it's face.

    Ditto with Proposition 8. Ditto with WA. It will be irrational for Washington to have voted to give gays and lesbians civil unions WITH THE EXACT SAME RIGHTS AS MARRIAGE a few years ago, but to vote to deprive them the right to call it marriage in 2012. There is no rational basis for such an action/

  • 10. fRaNkLiN  |  June 5, 2012 at 7:15 pm

    There is a HUGE chance it will backfire. If the Supreme Court rejects a rational basis review, then they have to move on to consider whether gays and lesbians are a suspect class or deserve heightened scrutiny. I honestly have no idea how they could ever come to the conclusion that gays and lesbians are not a suspect class given the tests that the Supreme Court themselves developed. In fact, the Supreme Court themselves have ALREADY applied some sort of heightened scrutiny, they just have never articulated what level it is.

    It would be obscene for the Supreme Court to come to the conclusion that Prop 8 survives heightened scrutiny given the number of Courts that have found that marriage bans don't even survive rational basis. No court has ever found that marriage discrimination bans survive heightened scrutiny. Even if the Supreme Court did find some way to approve Proposition 8, that still leaves gays and lesbians with the protections of being a suspect class under ANY federal court.

    This could be devastating for NOM and anti-gay forces. I can't believe that they are willing to risk it, but their actions really are illogical.

  • 11. B_Z  |  June 5, 2012 at 7:16 pm

    The 9th Circuit decision in _Perry_ was explicitly limited to taking away an existing right. See p.6: "Whether under the Constitution same-sex couples may *ever* be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. … We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage'…"

  • 12. fRaNkLiN  |  June 5, 2012 at 7:17 pm

    I said it wasn't the determining factor.

  • 13. Sims  |  June 5, 2012 at 7:49 pm

    Exposing bigotry using the bible :

    Hatred through discrimination is the greatest sin which goes against the greatest commandments of Christ given to all Christians. In the Parable of the Good Samaritan, Christ has clearly mentioned that the way to have eternal life for his followers is to through his commandments to love God and to love your neighbor as yourself. He has mentioned that those laws are above all other biblical laws of any other prophets.

    Those homophobes promoting hatred are antiChrist who do not believe or pretend to believe in Jesus Christ but do not acknowledge Christ for saying that His 2 commandments to love God and to love thy neighbor as thyself, are the highest of all biblical laws. The antiChrist, like the devil, is a master of quoting biblical verses except those 2 top commandments of love from Christ, they avoid using Christ's name but use other names, even 'God', to bring all sort of biblical verses or 'facts', to lie and to prove their justification to hate. AntiChrist deceive people that those 2 commandments of love were not above all laws for Christians, and they are around in many churches and organizations pretending to be of 'religious' faith.

    The issue of homosexuality is a test of the Christian faith on that choice of who they really believe in the end, to love (Christ and His greatest commandments) or to hate (succumb to temptation of verses NOT from Christ's greatest commandments and to justify their hatred).

    Whether we call those people homophobes, bigots, bible-thumpers, religious nuts, christian talibans, etc… their actual name from the real Christian biblical point of view is anti Christ.

    The prop 8 anti Christ may try to bring their case in court, but good thing the US constitution reflects Christ greatest commandments of love thy neighbor through justice and equality for all ! The anti Christ will never win and we have to expose them as such name.

  • 14. Leo  |  June 5, 2012 at 7:51 pm

    The determining factor was a deliberate change: "The context matters. Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place […]. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as is."

    It seems to me that trying to frame the veto referendum as such a deliberate change is a big stretch. If the governor had vetoed the bill, you could argue that she had no rational reason for doing so, but that doesn't mean you could get a federal court to override her veto. How is it different for a veto referendum?

  • 15. Tomato  |  June 5, 2012 at 7:56 pm

    I thought marriage equality became the law in February? No-one got married yet, but the law was signed and isn't it now in effect as of June 1? Though it is being held back until the signatures are turned in tomorrow and then verified. Can someone please explain the legal difference between a law that is in effect and a law that is being held waiting for signatures/referendum?

  • 16. B_Z  |  June 5, 2012 at 7:58 pm

    The law isn't in effect yet. If they don't turn in enough signatures tomorrow (June 6), the law goes into effect on June 7. If they do, then nothing happens until November.

  • 17. MFargo  |  June 5, 2012 at 9:11 pm

    I think it's a case of where dogma and prejudice have fused. The Vatican and other faiths have a great interest in producing children to increase/hold the power of the Church. Homosexuality–in their blunt way of thinking–can't increase their power. And it's been very easy to fan the flames of intolerance which–they've discovered long ago–increases their power.

  • 18. Will  |  June 5, 2012 at 9:12 pm

    I know that it goes without saying, but I hope that the Supreme Court hears this case, rules in favor of marriage equality, and applies its ruling nationwide. Living in Alabama as an gay teenager can be so hard, and although circumstances are improving even here, change is ridiculously slow. I plan on moving to California when I graduate next year, but that doesn't mean that the right to the pursuit of happiness should be withheld from anybody in this country, even in the South. All people should have the ability to pursue happiness given that it harms nobody, and while Olson and Boies have indeed accomplished their task, this case is a much needed opportunity for all adults in the union to have equal access to marriage regardless of their sexual orientation. I'm sure that the couples they are representing will ultimately feel the same way.

  • 19. Ian  |  June 5, 2012 at 9:12 pm


  • 20. Steve  |  June 5, 2012 at 9:13 pm

    It might be premature to speculate about such things, but I can't stop thinking about how the proponents will deal if the 9th Cir. ruling stands. in theory, they could go back to the ballot a second time and attempt to enact a ban that fixes all the problems that were fatal to Prop 8. However, to "fix" all the constitutional problems would make a 2d ballot measure less likely to pass. For example, they would have to be more circumspect in their campaign messaging so as not to project discriminatory animus. And they would have to eradicate all existing marriage and civil unions so as to avoid the irrational patchwork that Prop 8 permitted.

    As odd as it seems, a more draconian ban could be easier to justify constitutionally. However, they would never be able to pass a measure that eliminated existing marriages and civil unions. So what would they do? Doing nothing would mean allowing gay marriage to exist in CA forever. Might they not feel compelled to make a second attempt in spite of the long odds, if only to show that they did everything possible to stave off gay marriage?

  • 21. John  |  June 5, 2012 at 9:47 pm

    Highly unlikely they would even succeed in even getting on the ballot if SCOTUS denied review or if they accepted review and upheld the lower courts ruling. CA Courts wouldn't allow it on the ballot.

  • 22. Jamie  |  June 5, 2012 at 9:55 pm

    Actually, they'd be the same. Both irrational and illogical and devoid of a reason.

  • 23. Jamie  |  June 5, 2012 at 9:57 pm

    I don't know that CA courts have ever prevented something from going on the ballot.

  • 24. DaveP  |  June 5, 2012 at 10:21 pm

    Nope, and that's the whole *&@#$^% problem with the *(@#%* California initiative system. There's no check in the system to prevent blatantly unconstitutional stuff from getting on the ballot, which can result in a massive waste of a court battle to undo it later. Pardon my french.

  • 25. DaveP  |  June 5, 2012 at 10:22 pm

    Steve, your post brought a smile to my face as I read it – it really illustrates just how far past the tipping point we have come.

  • 26. John  |  June 5, 2012 at 10:52 pm

    Actually yes it's happend before. Courts have the power to do this.

  • 27. Straight Dave  |  June 5, 2012 at 11:07 pm

    Apart from the irrationality and discrimination and animus parts, there is a small technical and legal difference, at least as far as the Romer rationale is concerned.

    A Governor's veto is a normal part of deciding whether to pass a bill. Not much different than a senator voting NO, though with greater individual impact. But once a bill has passed and become "legally enacted", starting up a whole new effort to undo that act by referendum is a much stronger and deliberately negative action that requires its own justification.

    At that point, the only justifications are inherently negative and selective. It's no longer a matter of declining to go forward, but deliberately erasing something that's already on the books. That's what raises the animus flag.

  • 28. Jamie  |  June 5, 2012 at 11:19 pm

    No, all legislative acts are deliberate. Even vetos.

  • 29. Jamie  |  June 5, 2012 at 11:21 pm

    No, actually I don't believe that the CA supreme court has ever ruled that a voter initiative should not appear on the ballot. If I'm wrong, please provided a case, not conjecture.

  • 30. Billy  |  June 6, 2012 at 3:35 am

    I just love how the NOMbies are pretending to be so happy that the 9th smacked them down a second time. Like its what they hoped for in the first place. Like their grand plan all along was to lose every step of the way to scotus.

    Of course the bile they spew in their blog betrays their true feelings.

  • 31. Lymis  |  June 6, 2012 at 5:38 am

    You are right the the real-world logic is essentially the same and that the underlying principles are rooted in the same ideas.

    But that is very different from a specific legal ruling acting as a legal precedent that is binding in a different case.

    The 9th circuit ruling lays the groundwork for the logic to be applied in a later ruling on a similar issue like the referendum in Washington, but the way it was written is quite specific.

    Legal rulings are often like that – they can carve out specific questions while specifically excluding other specific questions. We like to think of all these rulings as "defining the rules" for broad areas of the law, but the job of the judges is to answer the case in front of them, and often they specifically do that in ways that DON'T have broad applicability.

    It may well be that a future lawsuit would rely heavily on the Prop 8 ruling and extend the applicability because that court finds that it has a broader reach.

    But this ruling was not that people have a right to marriage equality, nor that voters aren't allowed to vote on it. It is about whether a referendum can take away this kind of right after it is already in place. Period.

    A future court may well declare that the right is so fundamental that voters or even legislatures have no right to infringe on it. That's what we're all hoping for eventually. But this ruling isn't that one.

  • 32. AnonyGrl  |  June 6, 2012 at 5:44 am

    Not to mention that a group in power, especially one that is LOSING that power, often seeks a scapegoat to rally their forces behind. In the past, that has been Jews, the poor, Mormons, women, blacks, etc. Currently, the scapegoat is homosexuals. Most Christians have no earthly reason to feel any particular way about homosexuality, and twenty years ago would not have had any concern at all about it, until their leadership whipped them into a frenzy.

  • 33. AnonyGrl  |  June 6, 2012 at 5:49 am

    Yep… they are now GLAD to have lost… and please send them more money.


  • 34. Kate  |  June 6, 2012 at 5:56 am

    Brian is definitely the master of spin. His response to losing at the Ninth Circuit yet again? "Ninth Circuit Speeds Prop 8 Case Toward Supreme Court!"

  • 35. Steve  |  June 6, 2012 at 6:10 am

    It's really a question of how you define "existing".

    In WA that right would exist now if it weren't for the ballot initiative which stayed its implementation

  • 36. SoCal_Dave  |  June 6, 2012 at 6:47 am

    Funny. If he was really interested in "speeding" to SCOTUS, why the waste of time asking for en banc?

  • 37. Kate  |  June 6, 2012 at 6:52 am

    I've wondered that all along and wish someone who can still get on would post at NOMblog and ask that very thing. Fascinating to watch them all talk themselves into their whatever-is-current convoluted "reasoning." I think their "faith" taught them how to do that………

  • 38. Steve  |  June 6, 2012 at 7:00 am

    I don't see the basis for denying it a place on the ballot. It would be an amendment to the CA constitution, so the CA constitution itself could not bar it from the ballot. The only way it could be barred is if a court determined in advance that it constituted a facial violation of the US constitution. But the Perry litigation would not have established that principle and I don't see a CA court barring it from the ballot on that basis.

    The big dilemma they would face is whether to commit to a $40-50 million campaign to push a sweeping, retroactive and comprehensive ban that probably could never pass or whether to do nothing and accept that gay marriage is entrenched in CA forever. What Perry would deny them is the option of simply re-doing Prop 8 in the same form and using the same kind of fear-based campaign, as that would again fail to pass constitutional muster. Although it would seem to be a no-brainer not to waste the time and money, I could see them opting to roll the dice.

  • 39. MFargo  |  June 6, 2012 at 7:11 am

    I remember a friend–who's been gone over a decade now–telling the story of finding his excommunication papers "nailed" to the front door of his church perhaps 30 years earlier. Whether or not he was accurate in his description of all that, he became active in trying to enlighten the Catholic Church on its stance on homosexuality. This was during the height of the AIDS crisis–which brought about a lot of what you're talking about–as well as the scandal of pedophilia within the Church which had an ugly and unjust impact on the gay community.

    As the equality movement has evolved over the last several decades, lines that were drawn have been grossly distorted by fear and prejudice. And all of that became a sorry revelation to me when I saw the backlash to President Obama's election, hoping that we had passed some sort of milestone only to realize prejudice was alive and well in our society. There's much work to do on all fronts. P8TT and others are doing it. And the courts seem to be–presently–our biggest ally.

  • 40. SoCal_Dave  |  June 6, 2012 at 8:39 am

    I tried. But after reading the comments already there, I didn't have the stomach to wade into that pool of hate. Jesus himself could tell them to love one another and they would ignore him.
    Oh wait, that already happened. :-(

  • 41. Robert  |  June 6, 2012 at 9:15 am

    "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."

    This paragraph poped out to me. Does anyone know where to find these comments or writings on broder aplications of the decision to other states?

  • 42. Lesbians Love Boies  |  June 6, 2012 at 9:25 am

    I have seen folks posting the question. They all skim over it and never fully answer – just restate their thrill of losing and that it's the one step they have been waiting for to get to the Supreme Court. No – they could have gone quite sooner. There is a problem I don't think they forecast – the longer they wait – the more the country's citizens are accepting Marriage Equality. This does sway opinions and may be the one that lights the fire under Kennedy to swing in favor of Marriage Equality. The stall more likely is going to backfire on the H8ters and they will cry afoul and say it was all part of the GAY AGENDA to have this go through the courts slowly – the SPIN!

  • 43. Straight Dave  |  June 6, 2012 at 10:42 am

    The way the timing lines up now is that SCOTUS won't hear the case, or even see any briefs, until after the Nov election. If we win at least 2 of WA, MD, ME, the chances of SCOTUS upholding Prop 8 go way down. The writing will clearly be on the wall and Kennedy won't want to get tainted with a lost cause that will look bad by the time he retires.

    That's even more reason why they won't touch this case with a 10-foot pole. There is no upside for any of them. Going backward is no longer a sane option. And it's a bit too early to charge ahead unnecessarily. Let the Nevada case come to them in 2 more years and see how the country feels then (I know that's morally wrong, but that's life).

    …. unless Roberts and Kennedy wink at each other in advance and decide to make history. Baring that, cert denied before XMAS.

  • 44. Carpool Cookie  |  June 6, 2012 at 11:36 am

    Yes. They could get disbarred (or heavily censured) if they did not put their clients' interests first.

  • 45. Carpool Cookie  |  June 6, 2012 at 11:40 am

    Re: "They haven't been particularly good legal strategists though… Jesus is their co-counsel after all! "

    To non-superstitious people who don't believe in gods, this would mean they're essentially flying blind.

  • 46. nila4052  |  June 13, 2012 at 10:41 pm

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