Olson and Boies discuss strategic option of a narrow win

by on March 17, 2010  •  In Uncategorized

The strategic advantages of framing the federal constitutional challenge to Prop 8 more narrowly, so as not to challenge all 40 or so state law prohibitions on same-sex marriage, have been evident since the beginning of the Perry case.  The lgbt legal groups filed an amicus brief making that argument; Matt Coles has spelled it out, and I've argued since August that it's the plaintiffs' best bet for a victory.  Now, in a sign that there may be some meaningful convergence between the strategies of the lgbt legal groups and the plaintiffs' lawyers, Ted Olson and David Boies are starting to talk in those terms as well.

From a Gay City News report of an invitation-only event at the NY Times:

Boies and Olson were cagiest on how broad they think a potential district court victory might be. The court could find –– in somewhat analogous fashion to a 1996 Supreme Court case in which an anti-gay Colorado amendment was thrown out –– that voters in California had acted to deny gay and lesbian couples the equal protection of the law, in this case guaranteed by the state rather than the federal Constitution.

Or, Walker could rule that Boies and Olson succeeded in doing what they say they will fight to the end to demonstrate –– that the fundamental right to marry and the equal protection of the laws of the United States are violated when same-sex couples are denied access to civil marriage.

That, of course, would be the ultimate game-changer. Olson, perhaps the nation’s preeminent Supreme Court litigator, and Boies are clearly banking on their ability to win that argument on the merits at the high court, whatever the conventional wisdom about the current justices’ biases.

When asked afterward whether his confidence at the district court level is about winning the general argument or more narrowly restoring the right to marry in California, Boies said he was uncertain, acknowledging that Walker might well reach a decision fashioned to survive review by the Ninth Circuit and the Supreme Court.


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