Theodore Olson, a lead attorney in a lawsuit challenging California’s Proposition 8, predicted at a meeting in San Francisco Thursday that the U.S. Supreme Court is likely to take up 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 two cases pose similar questions of marriage rights and alleged sexual orientation discrimination, and the court may want to address them together and “get it done,” Olson told an audience of about 150 people.
The Proposition 8 appeal was filed by sponsors of the 2008 voter initiative, which restricted marriage to the union of a man and a woman. They want the Supreme Court to overturn a decision in which the 9th U.S. Circuit Court of Appeals in San Francisco in February found the measure to be unconstitutional.
The sponsors contend that California voters were entitled to choose a traditional definition of marriage and that individual states, acting through legislatures or voter initiatives, should be allowed to define marriage within their state.
The U.S. Constitution “leaves the definition of marriage in the hands of the people, to be resolved through the democratic process in each state,” the sponsors argued in their appeal petition.
Although the high court could act at any time on whether to grant review, some legal observers expect it to wait until late November, after briefing in the DOMA cases is completed.
Olson said that if the court takes up Proposition 8, he would expect oral arguments this spring and a decision by the end of June.
If the panel denies review, then “we will have won that case,” Olson said. The 9th Circuit decision would go into effect and gay marriages could quickly resume in California, perhaps by Dec. 1, he said.
The circuit court decision would apply only in California, however, because that court ruled narrowly, saying that because same-sex marriage was legal in the state for several months in 2008, it would be unfair to deprive gays and lesbians of an existing right.
By contrast, a Supreme Court decision in the case could address the broader question of whether there is a federal constitutional right to same-sex marriage nationwide.
“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,” Olson said.
Olson, 72, a Republican, is a partner in the law firm of Gibson, Dunn & Crutcher in Washington, D.C. He grew up in Mountain View and earned his law degree at the University of California at Berkeley.
Olson served as solicitor general for President George W. Bush from 2001 to 2004, defending federal laws before the Supreme Court.
As a private lawyer, he won Supreme Court rulings for Bush in the 2000 Bush v. Gore election dispute and for Citizens United in the 2010 case in which the court struck down limits on independent political spending by corporations and organizations.
“A lot of people thought I wouldn’t be sympathetic to the issue (of same-sex marriage), but I was. This is an American issue about human rights,” Olson said.
Olson and co-lead attorney David Boies, who represented then-Vice President Al Gore in the election case, filed the federal lawsuit challenging Proposition 8 in 2009 on behalf of couples Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeffrey Zarrillo of Burbank.
The case went to the 9th Circuit after U.S. District Judge Vaughn Walker of San Francisco struck down Proposition 8 in 2010. The lower court rulings were put on hold during the appeals and the initiative remains in effect until the Supreme Court acts.
Stanford University law professor Pamela Karlan, who was moderating Thursday’s forum, asked Olson whether he saw a tension between the Proposition 8 and DOMA cases.
The Defense of Marriage Act bars the federal government from recognizing same-sex marriages for purposes of federal benefits even when the marriage has taken place in a state allowing such unions.
In the DOMA challenges, civil rights lawyers are asking the court to require the federal government to honor state laws allowing gay marriages, Karlan noted. By contrast, Proposition 8 opponents want the court to strike down a state ban on same-sex marriage.
“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.
At the time the Proposition 8 lawsuit was filed, many gay rights strategists were urging advocates to try to win victories in state courts and to avoid federal courts for fear of ending up with an adverse decision from a Supreme Court with a conservative majority.
Olson and Boies have frequently been asked why they took the risk of going before the Supreme Court.
Olson on Thursday ticked off five reasons. The court overturned a Colorado measure banning legal protections for gays and lesbians and no one can tell what the court will be like in the future, he said.
Also, Olson said, “we were representing real people who felt that their constitutional rights were being violated. Were we supposed to tell them to wait a few years?” he asked.
Fourthly, he said, a federal lawsuit was inevitable and the legal team wanted to make sure it was carried out with the “intense focus on detail and planning” that they and the newly created American Foundation for Equal Rights were prepared to devote to it.
Finally, Olson said, he was influenced by Martin Luther King Jr.’s famous 1963 letter from a jail in Birmingham, Ala., to fellow black ministers.
Paraphrasing King, Olson said, “Civil rights are never won by not fighting for them.
“You’ve got to keep fighting for them and you may lose, and then you have to move forward and keep fighting,” Olson said.
Julia Cheever, Bay City News