Boies and Olson on Prop8

Attorneys Ted Olson and David Boies discussed the Prop8 case recently. While they want to restore marriage in California, their goal has always been to take the case to the US Supreme Court and legalize marriage for all Americans. Ironically, the question of standing might limit their options to do so.

Of course, marriage for all is better than marriage for some, but marriage for some is better than marriage for none.

From the HuffPo:

There is, legal experts say, a distinct possibility the Court could determine that there is no one qualified to defend the state's interests in arguing that Prop 8 should not have been struck down. Both the governor and the attorney general have refused to do so. If that's the case, then Walker's overturn becomes de facto law. That would be a victory for gay rights advocates, but a narrow one. While it would likely allow for same-sex marriage in California, it would not address marriage in other states.

"We set out to overturn Prop 8 so that hundreds of thousands of millions will be living under a regime in which Prop 8 does not exist and that kind of discrimination does not occur," said Olson. "We would love to have a unanimous decision by the Supreme Court striking it down on its merits but we don't have any choice."....

Boies, for his part, reiterated that the ultimate objective was to get a decision by the U.S. Supreme Court determining that any law abridging marriage was an infringement on the equal protection. If that were to happen, he said, "the issue would be fully resolved," across all states.

"The fundamental issue is that this is not something that ought to be decided politically," he said during the briefing. "It’s very encouraging to all of us that there is this shift in public opinion [in favor of same-sex marriage]. Even in the absence of opinion in public, the fact of the matter is the constitutional protections are clear."

The article goes on to point out that there are no other obvious cases as potentially as useful as CA, if they were to need to relitigate this issue.

But of course, it's entirely possible the Supreme Court would find against us (I don't trust them at all) and then we'd all be screwed.

I'll take a win, any time.