Supreme Court Could Uphold Gay Marriage in California with ‘Smallest Bite,’ Olson Says
One of the lawyers seeking to overturn California’s ban on gay marriage says it’s possible the Supreme Court could strike down the ban in an incremental way.
Theodore Olson and David Boies are seeking to uphold a ruling striking down the Proposition 8 referendum banning gay marriage. Olson says that, if the case gets to the Supreme Court, the justices could issue a ruling for gay-rights supporters that falls short of finding a constitutional right to gay marriage, Politico’s Under the Radar blog reports.
“The Supreme Court sometimes likes to take, with respect to these types of issues, the smallest bite that makes a big difference,” Olson said. “Sometimes the courts have to get out in front and sometimes they’ll take a big step and sometimes they’ll take an incremental step. What we did throughout this case is to make sure that the options were there.”
Proposition 8 had overturned a California Supreme Court ruling finding a state constitutional right to gay marriage. One issue is whether backers of the initiative have standing since most California officials declined to appeal, the Huffington Post reports. The 9th U.S. Circuit Court of Appeals based in San Francisco has asked the California Supreme Court for its opinion on the standing issue, and the case could end with a standing victory for Olson and Boies.
If the case reaches the Supreme Court, Olson sees several possibilities, Under the Radar says. The Supreme Court could decide that the right to marry is a right of liberty and privacy, or that there’s no rational basis to discriminate in marriage based on sexual orientation or sex, or that the right to gay marriage was entrenched and taken away.